New Harvest Christian Fellowsh v. City of Salinas ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEW HARVEST CHRISTIAN No. 20-16159
FELLOWSHIP,
Plaintiff-Appellant, D.C. No.
5:19-cv-00334-
v. SVK
CITY OF SALINAS,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Susan G. Van Keulen, Magistrate Judge, Presiding
Argued and Submitted May 12, 2021
San Francisco, California
Filed March 22, 2022
Before: Jacqueline H. Nguyen and Daniel P. Collins,
Circuit Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff;
Partial Concurrence by Judge Collins
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 NEW HARVEST V. CITY OF SALINAS
SUMMARY **
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of the City of
Salinas in an action brought under the Religious Land Use
and Institutionalized Persons Act by New Harvest Christian
Fellowship, an evangelical church, alleging violations of the
Act’s substantial burden and equal terms provision.
New Harvest alleged that the City’s zoning restrictions
prohibited it from hosting worship services on the ground
floor of its newly purchased building, which substantially
burdened New Harvest’s religious exercise and treated New
Harvest on less than equal terms with nonreligious
assemblies.
While the appeal was pending, New Harvest informed
the Court that it was in the process of selling its building,
with escrow set to close on May 25, 2021. Having received
no indication from New Harvest that escrow did not close on
that date, the panel assumed that New Harvest no longer
maintained a legally cognizable interest in the building. The
claims for declaratory and injunctive relief were therefore
moot. New Harvest’s claim for nominal damages, however,
was sufficient to keep the case alive. Moreover, New
Harvest sought compensatory damages for the money it
spent on various associated building expenses.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NEW HARVEST V. CITY OF SALINAS 3
The panel held that looking to the totality of the
circumstances, New Harvest failed to demonstrate a
substantial burden on its religious exercise. The panel held
that three factual circumstances militated against a finding
of substantial burden: (1) New Harvest could have
conducted worship services in the building had it been
willing to hold services on the second floor or reconfigure
the first floor; (2) New Harvest was not precluded from using
other sites within Salinas and at least one suitable property
has come on the market during the course of this litigation;
and (3) at the time it purchased the building, New Harvest
was on notice that the zoning restrictions would prohibit it
from conducting worship services on the first floor.
The panel next concluded that the City’s Assembly Uses
Provision, which prohibits religious and other assemblies
from operating on the ground floor of buildings facing Main
Street within the downtown area, facially violated the equal
terms provision of the Religious Land Use and
Institutionalized Persons Act (RLUIPA). The panel held
that other nonreligious assemblies, such as theatres, which
were permitted to operate on the first floor of the Main Street
Restricted Area, were similarly situated to religious
assemblies with respect to the City’s stated purpose and
criterion. Because the City prohibited New Harvest from
hosting worship services on the ground floor of the Main
Street Restricted Area but permitted theatres to operate on
the ground floor in that area, it impermissibly treated
religious assemblies on less than equal terms with
nonreligious assemblies. The panel therefore concluded that
the Assembly Uses Provision facially violated the equal
terms provision of RLUIPA.
Concurring in part and concurring in the judgment,
Judge Collins agreed that New Harvest failed to carry its
4 NEW HARVEST V. CITY OF SALINAS
burden, in opposing summary judgment, to show that the
land use regulation imposed a substantial burden on its
religious exercise. But in reaching that conclusion, Judge
Collins would rely on narrower grounds than did the
majority. The record contained evidence that “a suitable
property was available for sale” during the relevant time
period and in Judge Collins’ view New Harvest failed to
present sufficient evidence that purchasing that property—
which was a church—would have entailed substantial delay,
uncertainty, and expense. Judge Collins wrote that were it
not for the fact that plaintiff failed to establish that the
alternative church property was not readily available and
suitable, he would otherwise find a sufficient showing of a
“substantial burden” to warrant a trial.
COUNSEL
Kevin T. Snider (argued) and Matthew B. McReynolds,
Pacific Justice Institute, Sacramento, California, for
Plaintiff-Appellant.
Gregory R. Aker (argued), Thomas B. Brown, and Temitayo
O. Peters, Burke Williams & Sorensen LLP, Oakland,
California, for Defendant-Appellee.
Victoria Wong, Deputy City Attorney, Office of the City
Attorney, San Francisco, California, for Amici Curiae
League of California Cities and California State Association
of Counties.
NEW HARVEST V. CITY OF SALINAS 5
OPINION
RAKOFF, District Judge:
New Harvest Christian Fellowship (“New Harvest”), an
evangelical church located in Salinas, California, appeals
from the district court’s entry of summary judgment in favor
of the City of Salinas (the “City”), on the Church’s
“substantial burden” and “equal terms” claims brought under
the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. We affirm the
district court’s summary judgment as to the Church’s
substantial burden claim, but we reverse the district court’s
summary judgment as to the equal terms claim and remand
for further proceedings consistent with this opinion.
I. Background 1
In March 2018, New Harvest purchased the Beverly
Building, a two-story building located on Main Street in
downtown Salinas. After operating out of a rented building
nearby for several years, New Harvest hoped to move to the
more spacious Beverly Building, where it intended to host
worship services on the first floor and build classrooms,
offices, storage space, and a kitchen area on the second floor.
The Beverly Building, however, is located on Main
Street in a part of downtown Salinas called the “Downtown
Core Area.” The Downtown Core Area is subject to certain
zoning restrictions designed, among other things, to
“[e]ncourage pedestrian-oriented neighborhoods where
local residents and employees have services, shops,
1
The material facts in this case are substantially undisputed. This
summary draws from the district court opinion, New Harvest Christian
Fellowship v. City of Salinas, 463 F. Supp. 3d 1027 (N.D. Cal. 2020).
6 NEW HARVEST V. CITY OF SALINAS
entertainment, jobs, and access to transit within walking
distance of their homes and workplace.” Salinas Zoning
Code § 37-40.290. The zoning code classifies the area in
which the Beverly Building is located as “mixed use,” which
generally requires “religious assembl[ies],” like New
Harvest, to obtain a conditional use permit to operate. See id.
§ 37-30.240, Table 37-30.110. The zoning code also
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.” Id. § 37-40.310(a)(2). We refer to
this latter zoning restriction as the “Assembly Uses
Provision” and to the three blocks of Main Street subject to
the Assembly Uses Provision as the “Main Street Restricted
Area.” 2
Before New Harvest acquired the Beverly Building, the
City advised the church that it would not be permitted to
conduct worship services on the ground floor, because such
a use would be inconsistent with Assembly Uses Provision.3
Undeterred, New Harvest sought a zoning code amendment
2
The zoning code also includes another provision that governs the
contexts in which live entertainment is permitted in the Downtown Core
Area. Salinas City Code § 37-40.310(a)(3). We have no need to address
the parties’ disputes concerning this provision, as we resolve this appeal
on other grounds.
3
The building that New Harvest presently rents is also located in the
Main Street Restricted Area. New Harvest initially operated there under
a series of conditional use permits granted before the adoption of the
Assembly Uses Provision, the most recent of which, obtained in 2000,
was granted only after New Harvest represented that it was “not looking
for long term residence” but intended to “buy a permanent building or
build elsewhere.” The conditional use permit for the rented building has
since expired, however, and New Harvest continues to operate there as a
legal nonconforming use.
NEW HARVEST V. CITY OF SALINAS 7
(to modify the Assembly Uses Provision to enable religious
assemblies to operate on the ground floor of the Main Street
Restricted Area) and a conditional use permit (to permit New
Harvest, a religious assembly, to operate in the mixed use
district). The City denied both of New Harvest’s requests
“based on” the Assembly Uses Provision. City staff,
however, recommended that New Harvest submit a modified
application that would maintain an active use, like a café or
a bookstore, at the front of the ground floor facing Main
Street while building the sanctuary toward the back. The
City also amended the zoning code to ensure that New
Harvest would be permitted to operate a café or a bookstore
on the first floor of the Beverly Building. New Harvest
declined to submit a modified application.
Instead, New Harvest filed suit, alleging violations of
RLUIPA’s equal terms and substantial burden provisions.
New Harvest sought, among other remedies, injunctive
relief, declaratory relief, nominal and economic damages,
and attorneys’ fees. After discovery, both sides sought
summary judgment. The district court granted the City’s
motion and denied New Harvest’s. This appeal followed.
While this appeal was pending, New Harvest informed
the Court that it was in the process of selling the Beverly
Building, with escrow set to close on May 25, 2021. Having
received no indication from New Harvest that escrow did not
close on that date, we assume that New Harvest no longer
maintains a legally cognizable interest in the Beverly
Building.4
4
Under RLUIPA, a plaintiff has a cognizable interest in the
regulated land “if the claimant has an ownership, leasehold, easement,
8 NEW HARVEST V. CITY OF SALINAS
II. Discussion
We review an order of summary judgment de novo. Guru
Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d
978, 985 (9th Cir. 2006). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). Before turning to the merits, we address
justiciability.
A. Justiciability
Because New Harvest no longer has a cognizable interest
in the Beverly Building, its claims for declaratory and
injunctive relief are moot. See Centro Familiar Cristiano
Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1167–69
(9th Cir. 2011) (“The church no longer owns the [relevant]
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 appeal, however, is not moot. For one thing, New
Harvest’s claim for nominal damages is sufficient to keep
the case alive. Uzuegbunam v. Preczewski, 141 S. Ct. 792,
802 (2021). Moreover, New Harvest seeks compensatory
damages for the money it spent applying for the conditional
use permit, paying the Beverly Building’s monthly
mortgage, and paying property taxes that, according to New
Harvest, were only assessed because the building was not
servitude, or other property interest in the regulated land or a contract or
option to acquire such an interest.” 42 U.S.C. § 2000cc-5(5).
NEW HARVEST V. CITY OF SALINAS 9
used for religious worship. The City, therefore, may be liable
for nominal and compensatory damages under RLUIPA,
assuming that New Harvest proves a violation and damages.
B. Substantial Burden Provision
The first operative provision of RLUIPA at issue in this
case is the substantial burden provision. It provides:
No government shall impose or implement a
land use regulation in a manner that imposes
a substantial burden on the religious exercise
of a person, including a religious assembly or
institution, unless the government
demonstrates that imposition of the burden
on that person, assembly, or institution—
(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of
furthering that compelling
governmental interest.
42 U.S.C. § 2000cc(a)(1). This provision applies, inter alia,
if the challenged government action involves
“individualized assessments of the proposed uses for the
property involved.” 42 U.S.C. § 2000cc(a)(2)(C). The City’s
denials of New Harvest’s applications constitute
“individualized assessments.” See Guru Nanak, 456 F.3d at
987. 5 New Harvest “bears the burden to prove the [City’s]
5
As mentioned, New Harvest sought and was denied both a zoning
code amendment and a conditional use permit. It has been argued that
only the latter should constitute an “individualized assessment” under
the substantial burden provision of RLUIPA. See Katie M. Ertmer, Note,
10 NEW HARVEST V. CITY OF SALINAS
denial of its application imposed a substantial burden on its
religious exercise.” Id. at 988. Only if New Harvest
establishes that it has experienced a substantial burden does
the burden shift to the City to show that its denial of the
church’s application is narrowly tailored to accomplish a
compelling governmental interest. See Int’l Church of
Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,
1067 (9th Cir. 2011).
We have explained that a substantial burden “must place
more than inconvenience on religious exercise.” Id. (quoting
Guru Nanak, 456 F.3d at 988). Instead, a challenged land use
regulation must impose a “significantly great restriction or
onus upon [religious] exercise.” Foursquare Gospel,
673 F.3d at 1067 (quoting San Jose Christian Coll., 360 F.3d
at 1034); see also Guru Nanak, 456 F.3d at 988–89. Our
previous cases indicate that some factors we consider in
determining the existence of a substantial burden include,
but are not necessarily limited to, whether the government’s
reasons for denying an application were arbitrary, such that
they could easily apply to future applications by the religious
group; whether the religious group has ready alternatives
available to it or whether the alternatives would entail
substantial uncertainty, delay, or expense; and whether the
religious group was precluded from using other sites in the
city. See San Jose Christian Coll., 360 F.3d at 1035–36;
Individualized vs. Generalized Assessments: Why RLUIPA Should Not
Apply to Every Land-Use Request, 62 Duke L.J. 79, 98, 110–11 (2012).
We have previously assumed, however, that the denial of a requested
zoning code amendment could be an individualized assessment under
RLUIPA. See San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1027, 1033–36 (9th Cir. 2004) (considering RLUIPA claim related
to denial of a re-zoning application, following prior approval of a
conditional use permit). In any event, because the City does not raise the
issue, we have no occasion to revisit it.
NEW HARVEST V. CITY OF SALINAS 11
Guru Nanak, 456 F.3d at 989; Foursquare Gospel, 673 F.3d
at 1067, 1070. These cases demonstrate that our approach to
determining the presence or absence of a substantial burden
is to look to the totality of the circumstances.
The City, however, asks us to adopt two bright-line rules.
First, the City contends that the existence of feasible
alternative locations for a church to conduct its worship
forecloses a finding of substantial burden. Second, the City
argues that there can be no substantial burden when,
knowing of the restrictions against use of a property for
worship purposes, a church proceeds with the purchase
anyway. We decline to adopt either of these bright-line rules.
The availability of alternative locations, although plainly
relevant to the substantial-burden inquiry, does not
necessarily foreclose a finding of substantial burden. That is,
other circumstances may create a substantial burden even
where an alternative location is technically available. See
Foursquare, 673 F.3d at 1068. Likewise, that a religious
group has imposed a burden upon itself by acquiring a
property whose use is already restricted is relevant to but not
dispositive of the substantial burden inquiry. A city’s zoning
code may be so restrictive that a religious group has no
option other than to purchase a property where religious
assembly is forbidden and hope that an accommodation will
be made on its behalf.
Looking, then, to the totality of the circumstances, we
agree with the district court that New Harvest has failed to
demonstrate a substantial burden. That is so for three
primary reasons, none of which alone is necessarily
dispositive.
First, New Harvest has not shown that the Assembly
Uses Provision precludes it from conducting worship
services in the Beverly Building. The record reflects that
12 NEW HARVEST V. CITY OF SALINAS
New Harvest could have reconfigured the first floor of the
building both to hold religious assemblies and to comply
with the zoning requirements applicable in the Downtown
Core Area. But New Harvest declined to adopt the City’s
proposed modification to its plans for the first floor of the
Beverly Building or otherwise reconfigure the first floor. 6
This stands in contrast to the plaintiff congregation in Guru
Nanak, which we concluded had faced a substantial burden
when it had “readily agreed to every mitigation measure” the
government had proposed but was nonetheless denied the
conditional use permit required to build the Sikh temple it
proposed. 456 F.3d at 989. While the City’s proposed
reconfiguration of the Beverly Building’s first floor might
have resulted in a space that could fit only 208 seats rather
than New Harvest’s preferred layout that could fit 299 seats,
New Harvest never proved that this difference in capacity
would have imposed a “substantial burden.” San Jose
Christian Coll., 360 F.3d at 1034 (internal quotation marks
omitted). 7
The Assembly Uses Provision also permits services on
the second floor. New Harvest objected in proceedings
6
New Harvest argues that the City’s mitigation proposal “is
unworkable because it contradicts the City’s own zoning code.” New
Harvest, however, would have been free to apply for another zoning code
amendment and conditional use permit incorporating the proposed
modifications. Had the City denied applications after inviting New
Harvest to file them, we would have been more likely to find a substantial
burden. See Guru Nanak, 456 F.3d at 989 (finding a substantial burden
where the city had a history of giving inconsistent reasons for denying a
religious group’s applications, thus “lessen[ing] the possibility that
future applications [for a conditional use permit] would be successful”).
7
With either layout, New Harvest would have had greater seating
capacity than the 160–175 seats that could fit in the congregation’s
rented facility.
NEW HARVEST V. CITY OF SALINAS 13
before the City that using the second floor would not be
“convenient” for worship services with live music because
the second floor’s lower ceiling results in worse acoustics.
While it might be that limiting services to the second floor
could amount to more than a mere inconvenience in another
case, New Harvest has offered no evidence other than the
conclusory testimony of its pastor that the second floor’s
nine-foot ceiling is too low for live music. In any event, even
assuming arguendo that the second floor is acoustically
suboptimal, New Harvest has not shown that the resulting
inconvenience would be anything more than that—an
inconvenience. Id.Second, even if we were to conclude that it would be a
substantial burden for New Harvest to conduct worship on
the second floor or to remodel the first floor, New Harvest
has not shown that it was precluded from using other sites
within the City. Under the zoning code, New Harvest is free
to conduct worship services in almost any area of the City
outside of the ground floor of the Main Street Restricted
Area. To the extent that New Harvest would need to apply
for a conditional use permit for religious assembly in other
parts of the City, there is no evidence that suggests the City
would deny such an application. To the contrary, over the
past fifty years, the City has granted all but one such
application from a church, among more than
100 applications. There is accordingly no record here that
any subsequent application from New Harvest would be
“fraught with uncertainty,” since the City has not exhibited
the “inconsistent decision-making” and conflicting
rationalizations for repeated denials that led us to find that
the Guru Nanak congregation faced a substantial burden
after it acquired a second property but was again denied
zoning approval. 456 F.3d at 990–91.
14 NEW HARVEST V. CITY OF SALINAS
Moreover, many properties have become available in
Salinas since New Harvest represented that it was intending
to look for a new location. But New Harvest did not take
steps to acquire any of these properties. The parties disagree
as to the time frame relevant to determining whether a
suitable alternative property was available to New Harvest.
But we need not resolve this issue because a suitable
property was available for sale during the pendency of this
litigation. Before the district court, New Harvest argued that
this property was unsuitable because it would require
congregants to make a U-turn on a highway in order to reach
the property on the other side. New Harvest presented no
evidence, however, showing that this feature would render
the property unsuitable for its congregation’s use. It did not
show, for example, that the property was unsuitable because
of “size, configuration, safety issues, or current uses.” See
Foursquare Gospel, 673 F.3d at 1068. Inconvenience alone
is not a substantial burden.
Finally, New Harvest’s wholesale failure of proof
concerning available alternatives is more significant because
New Harvest purchased a building that it knew at the time
was subject to unique zoning restrictions that would preclude
it from conducting worship services on the first floor. This,
combined with New Harvest’s failure to diligently pursue
other suitable buildings that came on the market since it
represented to the City that its stay at the rented building
would be temporary, suggests that New Harvest’s burden is
at least partly of its own making.
These three factual circumstances—that New Harvest
could have conducted worship services in the Beverly
Building had it been willing to hold services on the second
floor or reconfigure the first floor; that New Harvest was not
precluded from using other sites within Salinas and that at
NEW HARVEST V. CITY OF SALINAS 15
least one suitable property has come on the market during
the course of this litigation; and that at the time it purchased
the Beverly Building, New Harvest was on notice that the
Assembly Uses Provision would prohibit it from conducting
worship services on the first floor—all militate against a
finding of substantial burden. None is necessarily dispositive
on its own, but taking all the circumstances together, we
conclude that New Harvest has not met its burden of
showing that the Assembly Uses Provision imposes a
“significantly great” restriction, rather than an
inconvenience, on its religious exercise. Foursquare Gospel,
673 F.3d at 1067. We therefore affirm the district court’s
entry of summary judgment in favor of the City on New
Harvest’s substantial burden claim.
C. Equal Terms Provision
The other provision of RLUIPA that New Harvest claims
the City has violated is the equal terms provision. It provides
that “[n]o government shall impose or implement a land use
regulation in a manner that treats a religious assembly or
institution on less than equal terms with a nonreligious
assembly or institution.” 42 U.S.C. § 2000cc(b)(1). We have
previously identified four elements of an equal terms claim:
“(1) there must be an imposition or implementation of a
land-use regulation, (2) by a government, (3) on a religious
assembly or institution,” and (4) the imposition or
implementation must be “on less than equal terms with a
nonreligious assembly or institution.” Centro Familiar,
651 F.3d at 1170–71. It is undisputed here that the City has
imposed or implemented a land use regulation, that the City
is a government, and that New Harvest is a religious
assembly or institution. Thus, only the fourth element is at
issue in this case: whether the Assembly Uses Provision
16 NEW HARVEST V. CITY OF SALINAS
impermissibly treats religious organizations on less than
equal terms with a nonreligious assembly or institution.
The equal terms provision contemplates both facial and
as-applied challenges. It prohibits the government from
“‘imposing,’ i.e., enacting, a facially discriminatory
ordinance or ‘implementing,’ i.e., enforcing[,] a facially
neutral ordinance in a discriminatory manner.” Elijah
Group, Inc. v. City of Leon Valley, 643 F.3d 419, 422 (5th
Cir. 2011); see also Primera Iglesia Bautista Hispana of
Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1308
(11th Cir. 2006) (describing “three distinct kinds” of equal
term violations, including regulations that “facially
differentiate[] between religious and nonreligious
assemblies or institutions” and regulations that are “truly
neutral” but are “selectively enforced against religious, as
opposed to nonreligious assemblies or institutions”). Here,
New Harvest alleges that the Assembly Uses Provision
facially violates the equal terms provision because it permits
certain nonreligious assemblies to operate on the ground
floor of the Main Street Restricted Area while forbidding
religious assemblies from doing the same. 8
8
New Harvest also purports to bring an as-applied challenge to the
implementation of the Assembly Uses Provision. “The line between
facial and as-applied challenges can sometimes prove ‘amorphous.’”
Bucklew v. Precythe, 139 S. Ct. 1112, 1128 (2019) (quoting Elgin v.
Dep’t of Treasury, 567 U.S. 1, 15 (2012)). Such is the case here.
Although the contours of New Harvest’s as-applied challenge are murky,
the argument appears to be that particular nonreligious assemblies, such
as the Ariel Theatre, currently operating on the ground floor of the Main
Street Restricted Area should have been precluded from doing so under
the Assembly Uses Provision because they are “similar” to “clubs,
lodges, [and] places of religious assembly.” Because this provision’s
applicability, on its face, thus turns on the issue of whether other uses are
“similar” to churches, New Harvest’s facial and as-applied challenges
NEW HARVEST V. CITY OF SALINAS 17
“As this is a facial challenge, we consider only the text
of the zoning ordinance, not its application.” Calvary Chapel
Bible Fellowship v. County of Riverside, 948 F.3d 1172,
1176 (9th Cir. 2020). New Harvest bears the initial burden
of “produc[ing] prima facie evidence to support a claim
alleging a violation” of the equal terms provision. 42 U.S.C.
§ 2000cc-2(b). If New Harvest succeeds in doing so, the
statute shifts the burden of persuasion to the government on
“any element of the claim.” Id.
To make out a prima facie case of facially unequal
treatment, New Harvest must show that the Assembly Uses
Provision draws an “express distinction” between religious
assemblies and nonreligious assemblies. See Centro
Familiar, 651 F.3d at 1171 (“[T]he express distinction
drawn by the ordinance establishes a prima facie case for
unequal treatment.”). The Assembly Uses Provision does
just that: it 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, with regard to permitted first-
floor uses in the Main Street Restricted Area. Salinas City
Code § 37-40.310(a)(2). Because the Assembly Uses
Provision expressly excludes religious assemblies while
permitting some nonreligious assemblies, New Harvest has
established a prima facie case. See Centro Familiar,
651 F.3d at 1171 (“It is hard to see how an express exclusion
of ‘religious organizations’ from uses permitted as of right
by other [nonreligious] ‘membership organizations’ could
be other than ‘less than equal terms’ for religious
organizations.”). Accordingly, the City has the burden of
are not meaningfully distinct. We therefore analyze it as a facial
challenge.
18 NEW HARVEST V. CITY OF SALINAS
persuasion on each element of the equal terms provision
claim. 9
To meet that burden with respect to the contested fourth
element, the City must show that any nonreligious assembly
permitted to operate on the first floor of the Main Street
Restricted Area is not similarly situated to a religious
assembly “with respect to an accepted zoning criteri[on].”
Centro Familiar, 651 F.3d at 1173. The City, taking a
9
Of course, a religious organization will face a more difficult
challenge establishing a prima facie case where, unlike here, the
challenged regulation does not expressly prohibit religious assemblies.
Instructive is our recent decision in Calvary Chapel. In that case, a
church purchased a plot of land in the Citrus-Vineyard (C/V) Zone of the
Temecula Wine Country of Riverside County. 948 F.3d at 1174. The
zoning ordinance neither expressly permitted nor excluded religious
assemblies. Rather, in the C/V Zone, “vineyards, groves, crops, orchards,
gardens, and pastures for raising livestock are all permitted as of right,”
while “[e]ighteen-hole golf courses, child day care centers, bed and
breakfasts, country inns, hotels, restaurants, spas, cooking schools, wine
sampling rooms, retail wine sale stores, and special occasion facilities
are all permissible . . . upon approval of a plot plan.” Id. at 1174. After
the county declined to amend the zoning ordinance “to specifically
permit churches in the C/V Zone,” the church brought a facial challenge
under RLUIPA’s equal terms provision. Id. at 1175. The church argued
that the zoning ordinance facially violated the equal terms provision by
prohibiting religious assemblies, while permitting the above-mentioned
nonreligious assembly uses. See id. We rejected that challenge, holding
that the church failed to make out a prima facie case because, “[a]t least
on the face of the ordinance, secular and religious places of assembly are
treated the same.” We explained that “[b]oth are permitted in the C/V
Zone only if they meet the requirements of a ‘special occasion facility,’”
and “nothing in the text of the ordinance prevents churches from holding
regular worship services or other religious assemblies in their special
occasion facilities.” Id. at 1176. Here, unlike Calvary Chapel, the
challenged land-use regulation expressly prohibits religious assemblies
from operating on equal terms with at least some nonreligious
assemblies—a prima facie violation of the equal terms provision.
NEW HARVEST V. CITY OF SALINAS 19
different view of the proper order of operations, argues that
the burden should shift only after New Harvest identifies a
similarly situated nonreligious assembly that is permitted to
operate on the ground floor of the Main Street Restricted
Area. Such an approach, however, is inconsistent with
Centro Familiar, where we found that the ordinance’s
express exclusion of religious assemblies gave rise to the
plaintiff’s prima facie case, without requiring the plaintiff to
point to similarly situated nonreligious comparators. Id.
(“The burden is not on the church to show a similarly
situated secular assembly, but on the city to show that the
treatment received by the church should not be deemed
unequal, where it appears to be unequal on the face of the
ordinance.”). Accordingly, we conclude that the similarly
situated comparators come into play, in a facial challenge,
only after the plaintiff has put forward sufficient evidence
that the regulation makes an express distinction between
religious and nonreligious assemblies. 10
10
A decade ago, we observed that the approaches of our sister
circuits to facial challenges under RLUIPA’s equal terms provision fell
“roughly into two camps.” Centro Familiar, 651 F.3d at 1169 n. 25.
Since then, the split has only widened, and we now discern not two but
three distinct approaches to facial challenges under the equal terms
provision. One camp—which includes the Third and Sixth Circuits—
requires that plaintiffs “put forward” similarly situated nonreligious
assemblies in order to make a prima facie case. See Tree of Life Christian
Sch.’s v. City of Upper Arlington, 905 F.3d 357, 373 (6th Cir. 2018);
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d
253, 270 (3d Cir. 2007). The second camp, which includes this Circuit
and the Fifth Circuit, makes it easier for the plaintiff to make out a prima
facie case, requiring only that the plaintiff bring forward sufficient
evidence that the challenged regulation makes an express distinction
between religious and nonreligious assemblies, regardless of whether
those assemblies are similarly situated. See Opulent Life Church v. City
of Holly Springs, 697 F.3d 279, 291–93 (5th Cir. 2012). Only after the
20 NEW HARVEST V. CITY OF SALINAS
Since, as mentioned, New Harvest has established a
prima facie case, the burden shifts to the City to show that
any nonreligious assembly permitted to operate on the first
floor of the Main Street Restricted Area is not similarly
situated to a religious assembly with respect to an accepted
zoning criterion. As the Fifth Circuit has observed, this is
functionally a two-part test, requiring the government to
establish: (1) that the zoning criterion behind the regulation
at issue is an acceptable one; and (2) that the religious
assembly or institution is treated as well as every other
nonreligious assembly or institution that is “similarly
situated” with respect to that criterion. See Opulent Life,
697 F.3d at 292–93.
Turning to the first element, one stated purpose of the
Assembly Uses Provision is to encourage pedestrian-
oriented neighborhoods. See Salinas Zoning Code § 37-
40.290. New Harvest contends that the Assembly Uses
Provision is not an acceptable zoning criterion because it
does not further a “compelling interest.” But, as the Sixth
Circuit observed in rejecting a similar argument, there is no
requirement that the criterion further a compelling interest;
only an acceptable one. See Tree of Life Christian Sch.’s,
905 F.3d at 372. It is a closer question whether the City’s
choice to ban certain first floor uses is an acceptable means
plaintiff establishes a prima facie case does the burden shift to the
government to show, among other potential rebuttals, that the religious
and nonreligious assemblies are not, in fact, similarly situated. See id. In
the final camp is the Eleventh Circuit, which, like this Circuit and the
Fifth Circuit, does not require the plaintiff to put forward similarly
situated nonreligious assemblies in order to make a prima facie case;
however, under the Eleventh Circuit’s approach, the government may
carry its burden only by showing that the challenged provision survives
strict scrutiny. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1231–32 (11th Cir. 2004).
NEW HARVEST V. CITY OF SALINAS 21
of realizing its stated purpose to foster a pedestrian-friendly
Downtown Core Area. We need not resolve this issue
because, even if the zoning criterion is lawful, the City fails
the second element of the two-part test.
We conclude that the City has failed to show that the
Assembly Uses Provision treats religious assemblies on
equal terms with nonreligious assemblies that are similarly
situated with respect to an accepted zoning criterion. The
City assumes throughout its briefing that the Assembly Uses
Provision distinguishes between “private” and “public”
assembly uses, prohibiting only the former from operating
on the ground floor of the Main Street Restricted Area. The
City suggests that private assembly uses, but not public
assembly uses, “typically are open only to organization
members and their guests, operate during limited hours and
for most of the week are closed, and have ‘blank facades’
with no windows or windows with drawn shades or blinds.”
The Assembly Uses Provision itself, however, does not
speak in terms of “public” and “private” assemblies. Instead,
the provision prohibits three particular types of assembly
uses—clubs, lodges, and places of religious assembly—
along with “similar” assembly uses. Under the zoning code,
clubs and lodges are fairly characterized as private
assemblies. They are defined as “[m]eeting, recreational, or
social facilities” that are “primarily for use by members or
guests.” Salinas Zoning Code § 37-10.270. Churches,
however, are not fairly characterized as private assemblies
because they are commonly open to the public and can
attract substantial foot traffic. Indeed, some of the country’s
largest houses of worship, like New York’s St. Patrick’s
Cathedral and Washington’s National Cathedral, host
hundreds of thousands of visitors annually, only a small
22 NEW HARVEST V. CITY OF SALINAS
fraction of whom are members or guests of the church. 11
And, although not directly relevant in this facial challenge,
New Harvest itself explains that its own services “are held
open to the public and no one has ever been denied entry.”
For that reason, we hold that other nonreligious
assemblies, such as theatres, which are permitted to operate
on the first floor of the Main Street Restricted Area, are
similarly situated to religious assemblies with respect to the
City’s stated purpose and criterion. 12 Like many religious
assemblies, including New Harvest, theatres are open only
on certain days of the week and for certain portions of the
day; they attract sporadic foot traffic around their opening
hours; and while they have some regular patrons, they are
also open to newcomers. Some patrons come from nearby;
others drive miles to attend. When it comes to the “eyes on
the street” effect, theatres generally do not have large
windows facing the street with people visible inside.
Because the City prohibits New Harvest from hosting
worship services on the ground floor of the Main Street
Restricted Area but permits theatres to operate on the ground
floor in that area, the City does not treat New Harvest as well
as nonreligious assemblies similarly situated with respect to
an acceptable zoning criterion. We therefore conclude that
11
See, e.g., Liam Stack, With Tourists Gone, St. Patrick’s Cathedral
Pleads for Help, N.Y. Times, July 19, 2020.
12
Theatres are classified in the zoning code as “commercial
recreation,” see Salinas City Code § 37-10.270. They are permitted on
the Main Street Restricted Area, with only a nondiscretionary site plan
review required, so long as they are less than two thousand square feet
in floor area; otherwise, a conditional use permit is required. See id. § 37-
20.240, Table 37.30.110 & n. 6; see also id. § 37-60.270 (setting forth
the nondiscretionary site plan review process).
NEW HARVEST V. CITY OF SALINAS 23
the Assembly Uses Provision facially violates the equal
terms provision of RLUIPA.
Even if the City had met its burden of showing that the
Assembly Uses Provision treats New Harvest on equal terms
with similarly situated nonreligious assemblies, Centro
Familiar suggests that the City would need to make yet
another showing: that the provision is “reasonably well
adapted” to the accepted zoning criterion. See 651 F.3d
at 1175. For this standard, which is less rigorous than strict
scrutiny, id. at 1175, considerations of both over- and under-
breadth are relevant. Id. at 1174–75. To be sure, we have not
discussed, let alone applied, the “reasonably well adapted”
test since we first articulated it in Centro Familiar, and we
know of no other court that has done so. And because we
find that the City’s regulation does not treat religious
assemblies on equal terms with similarly situated
nonreligious assemblies, we need not pass on this test’s
continuing vitality today.
We briefly note, however, that applying the “reasonably
well adapted” test to the Assembly Uses Provision provides
further support for our holding. First, the Assembly Uses
Provision, like the ordinance at issue in Centro Familiar, is
overbroad because it “excludes not only churches, but also
religious [assemblies] that are not churches.” Id. at 1174.
The zoning code defines “religious assemblies,” as relevant
here, to include “[f]acilities for religious worship and
assembly, incidental religious education, meeting halls,
gymnasiums, and similar uses.” Salinas City Code § 37-
10.270. Even if churches were properly characterized as
private assemblies—and they are not—the Assembly Uses
Provision would also operate to exclude other “religious
assemblies” that would appear to foster the sort of vibrancy
that the zoning code is purportedly designed to promote. For
24 NEW HARVEST V. CITY OF SALINAS
example, the Assembly Uses Provision, as written, would
bar a YMCA gymnasium from operating on the first floor in
the Main Street Restricted Area, even as it permits an
Equinox gymnasium from operating in the same place. 13
Second, Centro Familiar teaches that courts should also
look to non-assembly uses whose presence is inconsistent
with a city’s stated zoning criterion. 651 F.3d at 1174–75.
The City’s zoning scheme permits on the ground floor of the
Main Street Restricted Area numerous uses, including
government offices, funeral services, and laboratories, that
do not appear to advance the City’s vision for a vibrant
downtown. 14 To be sure, these are non-assembly uses, so
they are not directly relevant as nonreligious comparators for
New Harvest. But their potential operation on the first floor
of the Main Street Restricted Area “would have the same
13
Both a YMCA and an Equinox would be classified as a “fitness
center” under the zoning code. See Salinas Zoning Code § 37-10.300.
They would be permitted in the Main Street Restricted Area with only a
nondiscretionary site plan review so long as they are less than five
thousand square feet in floor area; otherwise, a conditional use permit
would be required. See id. § 37-30.240, Table 37-30.110 & n. 6.
However, the Assembly Uses Provision would operate to bar the YMCA,
but not an Equinox, from operating on the ground floor in the Main Street
Restricted Area.
14
See Salinas Zoning Code § 37-40.310 (defining the use
classifications for the Downtown Core Area as those of the “underlying
base district,” with a small number of exceptions not relevant here); id.
§ 37-30.240, Table 37-30.110 (listing all use classifications in mixed use
districts and providing that government offices, funeral services, and
laboratories can operate in such districts, with only the nondiscretionary
site plan review required).
NEW HARVEST V. CITY OF SALINAS 25
practical effect” as a private assembly, undermining the
City’s vibrancy plan. Id. at 1174. 15
RLUIPA, of course, does not prevent the City from
crafting a zoning scheme that employs an accepted criterion
in order to prohibit certain uses from operating on the ground
floor of the Main Street Restricted Area. But the Assembly
Uses Provision, as written, impermissibly treats religious
assemblies on less than equal terms with nonreligious
assemblies. In writing its zoning code, the City should have
done and can do much better.
III. Conclusion
Because the Assembly Uses Provision facially violates
the equal terms provision of RLUIPA, we reverse. On
remand, the district court should proceed as appropriate to
adjudicate New Harvest’s claims for damages and attorneys’
fees.
AFFIRMED in part, REVERSED in part, and
REMANDED.
15
Other uses, such as hospitals and cemeteries, are permitted as of
right in those portions of the Downtown Core Area zoned as commercial
office, residential high density, and public/semi-public, but are not
permitted in the Main Street Restricted Area, which is zoned as mixed-
use. These uses—although, again, not assembly uses—also call into
question the City’s consistency in implementing its vibrancy plan.
26 NEW HARVEST V. CITY OF SALINAS
COLLINS, Circuit Judge, concurring in part and concurring
in the judgment:
I concur in the majority opinion except as to section II-B,
and I concur in the judgment.
I agree that Plaintiff New Harvest Christian Fellowship
failed to carry its burden, in opposing summary judgment, to
present sufficient evidence to show that the land use
regulations challenged here “impose[d] a substantial burden
on the religious exercise” of Plaintiff and its members in
violation of § 2(a)(1) of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc(a)(1). But in reaching that conclusion, I would rely
on narrower grounds than does the majority.
We have indicated that a local government does not
impose a “substantial burden” on religious exercise by
enforcing a zoning restriction if the religious assembly has
“ready alternatives” that do not “require substantial delay,
uncertainty, and expense.” Int’l Church of Foursquare
Gospel v. City of San Leandro, 673 F.3d 1059, 1068 (9th Cir.
2011) (citation and internal quotation marks omitted). As
the majority notes, the record here contains evidence that “a
suitable property was available for sale” during the relevant
time period, see Opin. at 14, and in my view Plaintiff failed
to present sufficient evidence that purchasing that
property—which was a church—would have entailed
substantial delay, uncertainty, and expense.
In opposing summary judgment on this point, Plaintiff
relied on a declaration from its real estate agent, who stated
that, “[t]o get to this church building,” which was “at the far
north end of Salinas,” “one must drive out of Salinas on
Highway 101 North and make a U-turn on the highway to
reach the building and campus heading back on Highway
NEW HARVEST V. CITY OF SALINAS 27
101 South.” That single sentence is simply too thin, without
more, to support a reasonable inference that this available
church property was not a suitable and ready alternative.
Plaintiff had the burden of proof to show a “substantial
burden” under RLUIPA, see Foursquare Gospel, 673 F.3d
at 1067, and on that issue Plaintiff failed to “come forward
with ‘specific facts’ showing that there is a genuine issue for
trial.” Wade v. Regional Credit Ass’n, 87 F.3d 1098, 1100
n.2 (9th Cir. 1996) (citation omitted). On that basis, I concur
in the judgment affirming the district court’s grant of
summary judgment in favor of the City on Plaintiff’s claim
under § 2(a)(1) of RLUIPA.
I disagree, however, with the majority’s suggestion that,
in evaluating the issue of substantial burden, we should also
give weight to two other alternatives—namely, (1) that
Plaintiff reconfigure the first floor of the Beverly Building
according to the City’s demands; or (2) that Plaintiff use the
second floor of that building for its congregational space.
See Opin. at 11–13 & n.6. On this record, neither of these
options presented a ready and suitable alternative. Indeed,
were it not for the fact that Plaintiff failed to establish that
the alternative church property was not readily available and
suitable, I would otherwise find a sufficient showing of a
“substantial burden” to warrant a trial.
In seeking summary judgment below, the City relied on
its proposal that Plaintiff dedicate almost the entire street-
facing portion of the first floor of the Beverly Building to a
nearly 1,500-square-foot commercial space (i.e., “retail,
food service, office, or other pedestrian-oriented uses”), with
the back portion of the first floor available for a 208-seat
congregational space. But Plaintiff’s pastor submitted a
declaration stating that a 208-seating capacity would give the
church “only about a dozen more seats” than the church’s
28 NEW HARVEST V. CITY OF SALINAS
existing location at the time it “purchased the Beverly
Building”—which would thwart the plans for growth and
evangelization that had led Plaintiff to acquire the Beverly
Building in the first place. Plaintiff instead had proposed a
much smaller 176-square-foot bookstore facing the street,
which would allow a 299-person congregational space on the
first floor of the Beverly Building, but the City rejected that
proposal.
Taking Plaintiff’s evidence as true, and drawing all
inferences in favor of Plaintiff, I think that the record would
permit a reasonable trier of fact to conclude that, by blocking
the church’s objectives for growth, the City’s first-floor plan
was not a suitable alternative and weighed in favor of finding
a substantial burden on Plaintiff’s religious exercise. In my
view, the majority therefore errs in suggesting that Plaintiff
should have “‘readily agreed’” to what “the government had
proposed.” See Opin. at 12 (citation omitted). As the
majority notes, what the City proposed would have reduced
the seating capacity of the church’s congregational space by
more than 25%, see id., thereby thwarting the Plaintiff’s
plans for growth and evangelization. That is certainly a
“burden” on Plaintiff’s religious exercise, and the magnitude
of that burden is plainly “substantial.”
The majority further errs in endorsing, as an adequate
alternative that weighs against a finding of substantial
burden, the proposal that Plaintiff use the second floor of the
Beverly Building for worship services. See Opin. at 12–13.
As an initial matter, the majority’s reliance on this second-
floor alternative is surprising, because the City itself did not
make this argument in its answering brief in this court.
Although the City’s brief mentioned that option in its
statement of facts, the brief’s legal analysis under RLUIPA
did not contend that the second floor was a suitable
NEW HARVEST V. CITY OF SALINAS 29
congregational-use alternative that defeated a showing of
substantial burden. Instead, the City argued that its first-
floor congregational-use proposal would free up “the entire
spacious second floor for use” by Plaintiff’s non-
congregational activities, such as its “youth ministries,” as
well as for “clerical offices, rehearsal rooms, storage, and
administrative functions.” Moreover, the City’s
architectural expert below relied only on the proposal that
the first floor be used for congregational services.
Furthermore, in suggesting that the Beverly Building’s
second floor would be a suitable space for “worship
services,” the majority improperly weighs the evidence and
again makes arguments the City itself declined to make. See
Opin. at 12–13. Plaintiff’s pastor’s declaration below
asserted that the second floor’s low ceiling made it
unsuitable for worship services, in which music was an
important element:
We could not place the sanctuary on the
second floo[r] due to the low height of the
ceiling which is 9'1". Acoustically, this is too
low for live music. At 15'7" the ceiling on
the ground floor is six and a half feet higher.
The majority discounts this concern as a mere
“inconvenience” because, in its view, the pastor’s testimony
on this point is “conclusory.” See Opin. at 12–13. But one
does not need a degree in acoustical engineering to know that
the sound quality of music—involving musical instruments
and potentially hundreds of people signing—will be
substantially inferior in an otherwise very large room that
has only the ceiling height of a standard living room. The
majority is effectively weighing the evidence itself, which
we are not permitted to do on summary judgment. Viewing
30 NEW HARVEST V. CITY OF SALINAS
the record in the light most favorable to Plaintiff, consigning
the church’s congregation to the second floor would directly
and substantially burden the conduct of Plaintiff’s religious
services—which is probably why the City never pressed the
contrary view in this court.
For the foregoing reasons, I respectfully concur in part
and concur in the judgment.