Guatay Christian Fellowship v. County of San Diego , 670 F.3d 957 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUATAY CHRISTIAN FELLOWSHIP,  No. 09-56541
Plaintiff-Appellant, D.C. No.
v.  3:08-cv-01406-JM-
COUNTY OF SAN DIEGO, CAB
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted
February 10, 2011—Pasadena, California
Filed December 23, 2011
Before: Michael Daly Hawkins and Raymond C. Fisher,
Circuit Judges, and Mark L. Wolf, Chief District Judge.*
Opinion by Judge Hawkins
*The Honorable Mark L. Wolf, Chief United States District Court
Judge for the District of Massachusetts, sitting by designation.
21157
21160 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
COUNSEL
Peter D. Lepiscopo, Lepiscopo & Morrow, San Diego, Cali-
fornia, for the appellant.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21161
Thomas D. Bunton, Senior Deputy, County of San Diego, San
Diego, California, for the appellee.
OPINION
HAWKINS, Senior Circuit Judge:
The Guatay Christian Fellowship (“Church”) appeals the
adverse grant of summary judgment on the Church’s claim
that San Diego County (“County”) enforced a land use regula-
tion in violation of the Church’s constitutional and statutory
rights under 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc
(“RLUIPA”). The district court determined the Church’s con-
stitutional and statutory claims were not ripe for review
because the Church failed to apply for the required land use
permit both during the twenty-two years it inhabited the prop-
erty prior to enforcement efforts and after the district court
ordered it to do so as a condition of proceeding with its suit.
The district court also rejected the Church’s claim that equita-
ble estoppel should apply to bar the County’s enforcement
efforts. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and affirm.
I. BACKGROUND
The history of the property and of the dispute between the
Church and the County is lengthy, but necessary to our analy-
sis. We summarize the most salient points here.
A. Facts
1. The Church
The Church was founded by Pastor Stan Peterson and his
wife Brenda in 1986. It originally held services in the Peter-
21162 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
sons’ home. Soon after its establishment, the Church moved
to its current location, a recreation building located in Guatay,
California, in the unincorporated portion of San Diego
County, on the grounds of the Pine Valley Trailer Park
(“Park”), to accommodate the congregation’s rapid growth.
The first services in the building were held that year and the
Church has conducted services on Sundays and Wednesdays
since then.
2. Zoning and Pre-Church Use of Land
The entire parcel of land on which the building in question
stands, including the Park, is zoned “rural residential” under
the County’s zoning ordinance. Land use permits1 are
required for many uses of the property, including religious
assembly, group residences, cultural exhibits and library ser-
vices, child care services, community recreation, civic assem-
bly, postal services, outdoor sports recreation, camping, and
law enforcement services. Before any permit may be granted
or modified for these uses, the County must hold a public
hearing and make findings on several factors, such as traffic
generation, effects on neighborhood character, and the suit-
ability of the site for the type and intensity of the proposed
use. The County must also ensure that applicants meet Cali-
fornia Environmental Quality Act ( “CEQA”) requirements.
Use Permits are not required for religious assembly in five of
the County’s twelve commercial zones and in one of the
County’s residential zones, where such assembly is permitted
as of right, but this building is not located within such a zone.
Built in 1940, and prior to the Church’s tenancy, the build-
ing it occupies was originally used as a general store and post
office but various property owners have submitted applica-
1
The Church and County refer to the permit required for using the prop-
erty for religious assembly as a “MUP,” which stands for Major Use Per-
mit. For simplicity, we refer to the required permit as a “Use Permit,”
except where quoting directly.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21163
tions to change the property’s use over the years. The building
also fell into several periods of disuse during the forty-six
years before the Church moved in. In 1966, appraisers
described the building as “[a]ll open, vacant, in bad condition
as to useability without extensive [remodeling].” In 1971 the
property owner applied for a Use Permit to convert the prop-
erty into a recreational campground, proposing to use the
existing building as a recreation hall. The third sheet of the
plot plan submitted with the 1971 Use Permit application
appears to label the building “Exist. Bldg. Rec Hall & Chap-
el,” although the property owner did not submit the applica-
tion for any purpose related to religious use. The Planning
Commission’s written approval of the Use Permit refers to the
recreation building but does not mention any use as a church
or chapel. In September 1978, a new owner, La France L.
Bragg (“Bragg”), applied for a minor deviation from the 1971
permit in order to sell a small portion of the land. The second
and third pages of the plot plans submitted with this applica-
tion labeled the recreation hall building as “Exist. Church”
and “Exist Bldg (Church).” The plot plan shows a stamp indi-
cating that the plan was initially approved, but the application
was ultimately denied because Bragg had pursued the wrong
modification process.
Bragg reapplied in December 1978 for modification of the
1971 Use Permit. It appears that the same plot plans and maps
submitted with Bragg’s initial minor deviation application
were submitted again, so the references to “Exist. Church”
and “Exist Bldg (Church)” reappear. In 1979, the County’s
Planning Commission granted this application “as per plot
plan,” noting that the modification would “serve to constrict,
rather than expand, the uses presently on this site,” and that
the “action will provide a more cohesive use of the existing
site.” The Commission did not mention including church ser-
vices among the building’s permitted uses. It did, however,
expressly state that the modification would expire on Febru-
ary 2, 1980, unless construction or reliance thereon started
prior to that date.
21164 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
Bragg testified that from 1977-80, the recreation building
was used as an office, kitchen, and recreation hall for Park
guests and was also sometimes rented out for local meetings,
but that it was never used as a church during these years.
Bragg also testified that before he purchased the property, the
recreation hall building “just looked like a—sort of an aban-
doned building. . . . [I]t didn’t seem like it was really used for
anything.” He confirmed that there was no church in the
building when he submitted the plot plans that labeled the hall
as an existing church, explaining that his engineers had used
the old plot plans to draw up new plans, so the references to
a church must have been in error. Bragg stated that the plans
he submitted should not have included a reference to the
building’s use as a church, because “[t]here was no sign of a
church when we bought it. It was sold to us as a rec hall, and
that’s how we treated it.”
In 1981, new owners of the property applied for another
modification of the Use Permit to expand the recreation build-
ing’s permitted uses to include live country western music
and beer and wine sales. The plot plan and map submitted
with this application identified the building as “Existing Rec.
Hall,” but did not mention a church or chapel. The Planning
Commission approved the application in 1982, granting, “as
per plot plan dated November 3, 1981 . . . to allow for the
conversion of the existing recreational hall for on and off site
sale of beer and wine, and allow live music and entertain-
ment.” The Commission required the owner to submit a
Department of Planning and Land Use compliance survey,
proof of water and sanitation tests, and evidence of permits
for construction. It also noted that the permit would expire on
July 16, 1984 “unless construction or use in reliance on this
major use permit modification has commenced” prior to that
date.
However, it appears that the building was never used as a
country western bar, as the permit modification stipulated.
Cheryl Rice (“Rice”), the Church’s secretary, testified that in
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21165
1986, when the Church first began meeting in the building,
the building was empty and “very filthy, a lot of junk in it,
falling apart.” It needed painting and repairs, and someone
from the Park told Rice that the building had not been used
for ten years. Cheryl Rice’s husband, Charles Rice, testified
that the recreation hall was “unfinished, very dirty, [had] been
empty a long time” by 1986. Pastor Peterson testified that the
building was in dilapidated condition when he first saw it, and
the Church had to complete many repairs to the building to
prepare it for use, including finishing some of the walls. Con-
sistent with Rice’s testimony, Pastor Peterson also testified
that the building had not been used for anything, to his knowl-
edge, for ten years before the Church moved in.
Other than the plot plans submitted with applications for
non-religious uses labeling the building as an existing church,
there was no testimony or evidence from any party establish-
ing that the recreation hall had actually been used for religious
purposes prior to the start of the Church’s tenancy in 1986.
3. Church Use, Repairs, and Taxes
Over the years, the Church made significant repairs and
renovations to the recreation building and surrounding area,
replacing roofs, enlarging an existing bathroom, erecting a
parking barrier, painting inside and out, paving the parking lot
area, and pouring cement for a basketball court. It also
installed air conditioning, heating units, drywall, lighting sys-
tems, a new electrical system, sound-proofing, a sound sys-
tem, and new flooring. The Church also took over and
renovated other buildings at the Park in order to establish a
main office and a children’s classroom building.
In July 2000, the County issued an electrical permit to
Doug’s Electric to complete work on the property. The permit
states that the scope of the work was to “upgrade Elec. To
200A for existing church.” There is no evidence in the record
that any of the Church’s representatives knew that the County
21166 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
had issued the permit to Doug’s Electric, and there is no evi-
dence that the Church sought construction or electrical per-
mits from the County for any of the other renovations it made
to the property.
Additionally, the Church has permitted others to use its
facilities for non-religious purposes over the years, including
for polling stations, government food distribution programs,
town meetings, Alcoholics Anonymous meetings, Harvest
Festival activities, water department meetings, and a senior
lunch program.
The Church has paid taxes for fixtures on the property since
1993. These are unsecured personal property taxes, not real
property taxes. An Assessor’s Parcel Number is associated
with the real property, but that number belongs to JFAJ Prop-
erties, LP—the current owner’s partnership—to whom the
taxes are also billed.
a. Prior History of Church Use Disputes and Permit
Applications
It appears that the Church and the current property owner,
John O’Flynn (“O’Flynn”), twice proceeded partway through
the County’s Use Permit application process. However, on
neither occasion did they obtain approval.
1986 Attempted Application. Soon after the Church
moved into the recreation building at the Park, Rice called the
County “to make sure [the Church was] abiding by all the
rules and laws.” At that time, a County employee informed
Rice that the Church would have to submit a Use Permit
application. Accordingly, Rice prepared and attempted to sub-
mit an application in person to the County offices. Rice
attested that she spoke with several people at the County
offices, but ultimately did not turn in the application. She
could not recall any of the individuals with whom she spoke.
She testified that “[t]he last person I talked to said to take my
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21167
paperwork back, that things are too confusing out there, don’t
worry about it.” Rice did not try to turn in another application,
and does not know what happened to the original completed
application she tried to submit in 1986.
1988 Incomplete Application Process. O’Flynn bought
the property in December 1986, shortly after the Church
began using the building. In March 1988, O’Flynn submitted
an application for a minor deviation from the approved Use
Permit in order to relocate six of the Park’s RV trailer sites.
The plot plan submitted with this application labeled the
building as a recreation hall and did not mention a church.
After O’Flynn submitted the application, Ben Graeme
(“Graeme”), a Senior Planner in the Department of Planning
and Land Use, inspected the Park. He later informed
O’Flynn’s partner, who had submitted the plans on behalf of
the Park, that the Department had disapproved the proposed
minor deviation plan because of the Park’s “bad history” and
because the existing recreation hall was being used as a
church.
A meeting was held on April 25, 1988 at the County’s
Regional Center to discuss O’Flynn’s request to validate the
relocation of the trailer spaces and to grant a Use Permit
authorizing the Church’s use of the recreation hall as a
church. O’Flynn took the meeting notes. At the meeting,
George Hatton, O’Flynn’s business partner, explained that the
building designated as a recreation hall had never been used
as such, but was instead a “dilapidated building used as a
storeroom.” He elaborated that the previous owner’s request
to use the recreation hall building as a restaurant and bar had
been rejected because of septic problems at the Park. Rice
related her previous effort to obtain a permit, and the uniden-
tified County employee’s 1986 statement that “the easier
course would be just to continue operating as is” without sub-
mitting the permit application.
21168 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
Bob Stewart (“Stewart”), a County employee, stated that “it
seemed that the Church would probably require a major use
permit.” Pastor Peterson said that the Church had the funds to
proceed with a Use Permit and was “very willing to proceed.”
Stewart also stated that it was possible that the existing Use
Permit for the Park could be revoked due to the use of the
proposed recreation hall as a church, although he thought it
unlikely because of the “outrage” it might cause among the
residents. He then telephoned Graeme, who “suggested [the
Church and Park] needed to apply for a major modification to
the existing use permit, which would include . . . [u]se of the
hall as a church.” Stewart noted that parking might be an
obstacle to securing a Use Permit for the Church.
In his meeting notes, O’Flynn included as a plan of action
that, “[s]ince [use of the building as a church] apparently
needed a major use permit, apply for major use permit with
John O’Flynn supplying a percentage of the funds needed for
the application.”
No Use Permit application was ever completed. In Septem-
ber 1988, O’Flynn sent a letter to the Department of Health
Services disputing the department’s requirement of a water
engineering report for the water system at the Park. O’Flynn
noted that he was ready to proceed with the Use Permit pro-
cess, including by providing the necessary fee payment, but
that the Department had indicated there would be no signoff
for the application until the required report was submitted. In
his letter, O’Flynn argued that a study of the water system
was unnecessary since there was no plan to add any hookups
to the water system. He noted, “[i]n the case of the relocated
trailer spaces and the church, we are attempting to legalize an
existing situation.”
The Department responded in November 1988 with a note
treating O’Flynn’s letter as an appeal of the requirement for
the engineering report on the Park’s water system. In its
response, the Department’s public health engineer conveyed
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21169
to O’Flynn the Department’s determination that “the existing
wells and reservoir, are adequate for current domestic needs
which include the use of the recreation building for a 200 per-
son church and relocation of the 7 recreational vehicle sites.”
The letter did not state that the Use Permit was therefore
granted, or that the County had made any final determination
on the application’s merits. The Chief of Land Use and sev-
eral other Planning and Land Use employees were sent copies
of the letter.
The Church proffers no record evidence demonstrating that
a completed Use Permit application was submitted to the
Department of Planning and Land Use, either before or after
O’Flynn’s exchanges with the Department of Public Health.
In fact, the County denied O’Flynn’s minor deviation applica-
tion in March 1989, stating that even though he had been
informed that this would require a Use Permit, O’Flynn had
nonetheless failed to apply for one from the time of the April
1988 meeting to the time of the letter’s writing.
According to Rice, after 1988 and up to the time of the
enforcement actions at issue here, the Church made no
attempt to file another Use Permit application. Nonetheless,
the Church continued to use the property for religious assem-
bly for the next twenty years.
b. Enforcement of the County’s Regulations
The Park’s April 2008 Notice of Violation. The County
issued a Notice of Violation (“NOV”) to the Park via O’Flynn
on April 16, 2008. The NOV identified numerous violations,
including that the number of mobile homes exceeded the per-
mitted number of sites, occupants remained past the ninety-
day permitted limit, septic system issues, illegal structures,
and excessive vegetation on some of the mobile homes. It also
21170 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
noted that the recreation hall had been “illegally converted for
use as a church.”2
The NOV advised that the use of the building could not be
changed without a Modification of Use Permit (“MOU”). It
further advised that “[r]eligious assembly is not allowed in an
RR-1 Zone without an MUP,” and stated that O’Flynn was
“required to notify the church staff to cease using the building
for religious assembly within 30 days of the notice.” In addi-
tion, the NOV required O’Flynn to notify the Church that
continued use of the property for religious assembly could
result in penalties of up to $2,500 per day for each day
beyond the thirty-day period. It also stated that O’Flynn was
responsible for ensuring that the Church complied, and his
failure to take legal action against the church would result in
the County holding him liable for the Church’s violations of
zoning regulations.
The Park’s May 2008 Letter. On May 1, 2008, Charles
LePla (“LePla”), counsel for the Park, sent a letter to the
County, taking the position that the Use Permit allowing the
sale of beer and wine and live music in the building also per-
mitted religious assembly there. LePla asserted that this was
true because “[t]here is no material distinction between reli-
gious assembly and recreational assembly as land uses.”
Arguing that distinguishing between assembly for listening to
popular music and assembly for listening to religious music
was an unconstitutional content-based manner in which to
regulate, LePla “request[ed] that the County concur that reli-
gious assembly is within the scope of community assembly
authorized by the use permit[.]”
2
Although it is ultimately immaterial to our analysis at this stage of the
proceedings, we note that it is unclear from the record how the County
became aware of the Church’s continued violation of the zoning regula-
tion, or why the County chose to send the NOV in 2008 rather than at
some earlier date following O’Flynn’s failure to submit a completed appli-
cation.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21171
O’Flynn’s Notice to Residents and Church Members.
O’Flynn sent a notice to Park residents and Church members
on May 23, 2008, which relayed that the County had told him
that the recreation building could not be used for Church
assembly. However, O’Flynn did not advise the Church to
stop using the building; he instead asserted that the County
was wrong and advised that he and his lawyer were “attempt-
ing to work the disagreement out with the county.”
County’s May 30, 2008 Letter to Church. On May 30,
2008, the County sent a letter to Pastor Peterson stating that
O’Flynn’s letter had insufficiently informed him, and advising
him that because the property was not zoned for religious
assembly and no permit had been obtained to allow such use,
“the continued operation of [the C]hurch for that purpose is
illegal.” The letter also stated the County had no choice but
to take legal action against the Church unless it ceased con-
ducting religious assembly on the property until a permit was
granted.
Cessation of Services. Pastor Peterson testified that in
response to this letter, fearing prosecution or suit by the
County, the Church ceased all religious assembly on the prop-
erty. It conducted Sunday services in members’ homes and in
other neighborhood churches between June 6, 2008 and
August 10, 2008, and again from August 17, 2008, through
November 16, 2008. It ceased holding Wednesday services
during this time period.
In late May or early June 2008, Pastor Peterson called Eliot
Alazraki (“Alazraki”), Deputy County Counsel, who—
according to Pastor Peterson—confirmed the contents of the
May 30, 2008, letter and also informed Pastor Peterson that
had the Church not ceased engaging in religious assembly and
religious worship on the property, he “would have contacted
San Diego Gas & Electric and instructed them to cut all elec-
trical power to the Church complex.”
21172 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
B. Procedural History
1. Complaint
After the conversation between Pastor Peterson and Alaz-
raki, the Church retained counsel and filed this suit. The
Church did not attempt to obtain a Use Permit before doing
so. Nor did it attempt to avail itself of the appeals process, as
provided in the County’s code, through which it could have
obtained an official interpretation of the application of the
zoning ordinance to its building.
The complaint alleged nine causes of action for statutory
and constitutional violations under RLUIPA and 42 U.S.C.
§ 1983, including violation of: (1) RLUIPA’s “substantial
burden on religious exercise” prohibition, 42 U.S.C.
§ 2000cc(a); (2) RLUIPA’s unequal terms prohibition, 42
U.S.C. § 2000cc(b)(1); (3) RLUIPA’s total exclusion from
jurisdiction or unreasonable limits on religious assemblies
prohibition, 42 U.S.C. § 2000cc(b)(3); (4) right to free exer-
cise under the First and Fourteenth Amendments, 42 U.S.C.
§ 1983; (5) right to free speech under the First and Fourteenth
Amendments, 42 U.S.C. § 1983; (6) right to free assembly
under the First and Fourteenth Amendments, 42 U.S.C.
§ 1983; (7) right to free association under the First and Four-
teenth Amendments, 42 U.S.C. § 1983; (8) right to equal pro-
tection under the First and Fourteenth Amendments, 42
U.S.C. § 1983; and (9) right to procedural due process under
the Fourteenth Amendment, 42 U.S.C. § 1983. The Church
did not include an equitable estoppel claim in its complaint.
The complaint sought all appropriate relief under RLUIPA,
money damages, attorney’s fees, a preliminary injunction
allowing the Church to continue worshiping during the pen-
dency of the action, a permanent injunction against the Coun-
ty’s denial of the Church’s constitutional and statutory rights,
and a declaratory judgment elaborating the respective rights
of the parties.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21173
Resumed Use and Inspection Request. On August 6,
2008, the Church’s counsel, Peter Lepiscopo (“Lepiscopo”),
sent a letter to the County requesting that the County allow
the Church to continue using the building during the suit.
Thomas Bunton (“Bunton”), the County’s attorney, tele-
phoned Lepiscopo and told him that before the County could
consider the request, the County would need to inspect the
building to ensure that it was safe. Two days later, Lepiscopo
sent the County a letter requesting that the County execute a
stipulation regarding the inspection, including limitations on
the scope of the inspection, the County’s ability to use the
results of the inspection in this legal action, and the County’s
right to take photographs or videos during the inspection, as
well as a blanket right for the Church to terminate the inspec-
tion at any time for any reason.
Alazraki wrote to Lepiscopo on behalf of the County, urg-
ing that the Church should not hold services before the
inspection because the inspection was for the purpose of
ensuring that the building was safe. Alazraki explained that
because the Church was operating without a Use Permit, it
also had no valid certificate of occupancy for the building,
and use of the building without a valid certificate of occu-
pancy or Use Permit was “illegal.” The Church nonetheless
held religious services in the building on August 10, 2008.
The following day, Bunton sent an edited copy of the stipu-
lation request. Lepiscopo did not agree to the changes, and
stated that the Church would not allow the inspection to pro-
ceed on August 12. In response, Alazraki sent Lepiscopo an
e-mail stating that the County Code allowed the County to
inspect whenever it had reasonable cause to suspect that there
was a violation of any law it enforces concerning the safety
of structures on property. Accordingly, Alazraki stated that if
the Church would not consent to an inspection, the County
would seek and obtain a warrant. The next day—August 12,
the scheduled date of inspection—the County obtained a
superior court warrant to inspect the Church premises.
21174 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
2. TRO Application and Inspection
Later that day, the Church asked the district court for a
Temporary Restraining Order (“TRO”) to enjoin the County
from conducting the inspection. After a hearing on the
request, the district court denied the TRO, but scheduled a
hearing date to consider the Church’s contemporaneous
motion for a preliminary injunction.
The County finally inspected the building on August 14,
2008. The Church avers that three Sheriff’s deputies, four
County inspectors, a locksmith, and Alazraki participated. It
also avers that Alazraki denied Lepiscopo’s request that the
Church’s expert accompany the inspectors. Further, the
Church avers that Alazraki told Lepiscopo that rectifying the
code violations would require County permits, and “the
County would not issue permits to allow repairs of the code
violations unless and until the Church resolved the original
land use issues” related to the Use Permit.
The County inspectors found numerous violations, includ-
ing eight that were considered “serious.” Alazraki informed
the Church of these violations, and also stated that because of
the life-threatening nature of some of the violations, “the
Church to immediately cease holding assembly of any kind in
the building.”
3. Preliminary Injunction
The Church then moved for a preliminary injunction; it
argued that it had suffered irreparable harm from the County’s
cease-and-desist order. This harm manifested in many ways:
(1) the congregation was forced to hold its services in other
places, including in members’ homes, which was uncomfort-
able, curtailed the ability to worship with music, and cost the
Church additional money; (2) many members could not attend
the relocated services because of distance or inadequate facili-
ties for children and the disabled; (3) the members suffered
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21175
psychological harms from the forced closing of the Church;
(4) the Church incurred additional costs because of the drop-
off in member contributions and the accumulation of graffiti
on the recreation building in the Church’s absence; and (5) the
Church had to continue paying utilities and maintaining the
grounds, despite its inability to occupy the building. The
County did not oppose these factual assertions.
Although the complaint did not allege a claim for equitable
estoppel, the district court order on the motion noted that the
Church had argued in the course of the proceedings that prin-
ciples of equitable estoppel should enjoin the County from
arguing that a Use Permit was required. District Court Docket
(“DCD”) #34 at 5. The district court determined that the
Church had a fair chance of success on the merits of that argu-
ment. Id. It also found that, at least on a motion for a prelimi-
nary injunction, the public interest favored the Church,
especially since the County only alleged a generalized public
interest rather than any specific, compelling government inter-
est. Id. at 5-6.
However, the district court found that the Church’s
RLUIPA and constitutional claims under § 1983 were not
ripe. It reasoned that because the Church had “never applied
for either a MUP or a zoning change for the property . . . it
[wa]s unknown whether Plaintiff will obtain such relief” until
an application was filed. Id. at 6. The “failure to seek re-
zoning for the site or a MUP fails to establish a case or con-
troversy as Plaintiff may very well obtain the relief it
requests.” Id. at 7.
As such, the district court granted in part and denied in
part, the Church’s preliminary injunction application. The
court ordered the County to allow the Church to use the build-
ing for religious services, but only after the Church remedied
the eight most serious code violations found by the County’s
inspectors and identified in the report sent to the Church by
Alazraki. Id. at 7. The court also ordered the Church to submit
21176 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
a Use Permit application so as to remedy the ripeness prob-
lems with its claims. Id. at 7. It denied the preliminary injunc-
tion request to the extent that the Church “[sought] to compel
County to issue a MUP modifying the zoning for the site
without Plaintiff first applying for and receiving a MUP to
allow religious activities on the site. Plaintiff must complete
all required applications to obtain a MUP, as required of all
applicants seeking a MUP.” Id. at 7-8.
4. Summary Judgment
The Church remedied the majority of the most serious vio-
lations, and, after an inspection, resumed use of the building
for religious assembly on November 23, 2008. The Church
began the Use Permit application process, and submitted a
deposit of $14,597 for permit fees. Thereafter, the County
sent the Church a “scoping letter,” which set forth the addi-
tional fees, project issues, and public reviews that had to be
completed before a Use Permit could issue. The letter
required additional CEQA reviews and documentation, and
stated that an additional $35,653 would be required to “get the
project through to a hearing.”3 An expert retained by the
Church estimated that the cost of complying with the CEQA
environmental tests would be between $214,250 and
$314,250, and the time-frame for complying would be
approximately fourteen months to three years.
Rather than continuing with the Use Permit application pro-
cess or requesting reconsideration of the fees and test require-
ments, the Church moved for partial summary judgment on its
First, Fourth through Seventh, and Ninth causes of action, and
moved to dismiss without prejudice its Second, Third, and
Eighth causes of action.4 It also moved for an award of attor-
3
The Church maintains that the scoping letter demanded an additional
$50,250 in fees, on top of the initial $14,597 deposit. This is incorrect, as
the letter states that the $50,250 estimated total includes the initial deposit.
4
As such, the Church abandoned its claims of violation of unequal treat-
ment and total exclusion under RLUIPA, and its Fourteenth Amendment
equal protection claim under § 1983.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21177
ney’s fees and costs, to have a jury separately determine the
award of damages, and to permanently enjoin the County
from enforcing the zoning ordinance through the Use Permit
requirement. The Church contended that it could not afford to
pay the retainer fees the County required as part of the Use
Permit application process, and that therefore compelling its
compliance would cause it to “cease to exist.” Although the
Church’s own expert agreed that the application fees would
be “exactly the same” regardless of the nature of the organiza-
tion applying, the Church argued that it was entitled to sum-
mary judgment because the Use Permit application process
itself constituted a substantial burden on the Church’s practice
of religion, in violation of RLUIPA and of the Church’s con-
stitutional rights.
The Church also argued that there was an existing Use Per-
mit that allowed religious assembly, so the County could not
enforce its regulation against the Church. In support of this
argument, the Church submitted land use expert reports opin-
ing that (1) the 1971 and 1979 Use Permits approved use of
the property for religious assembly because they stated “grant
as per plot plan,” and the plot plans included references to the
building as an existing church; and (2) because the building
was never converted into a bar and restaurant, the 1982 modi-
fication to the Use Permit never “vested.” Additionally, the
Church argued that, even if there was no existing Use Permit
allowing religious assembly, the County should be estopped
from enforcing the zoning regulation against the Church
because it had led the Church to believe that religious use was
allowed. The County filed a cross-motion for summary judg-
ment on all claims, arguing that principles of equitable estop-
pel did not apply, there was no existing Use Permit allowing
for religious assembly, and the Church’s RLUIPA and § 1983
claims were not ripe.
On the Church’s equitable estoppel claim, the district court
reasoned that if there was an existing Use Permit or reliance
on some representation by the County that religious use was
21178 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
approved, the court’s consideration of the RLUIPA and
§ 1983 claims could be rendered moot. DCD #76 at 8.
After reviewing the evidence submitted by the parties, the
court found that, at most, there was a genuine issue of mate-
rial fact as to whether any of the original permit grants would
have allowed for religious assembly, and whether any of them
could have survived the explicit expiration periods in the
County’s zoning ordinance that attended their grant, given the
extended periods of disuse. The court emphasized that the
undisputed testimony of Pastor Peterson, Rice, and Bragg
established that the building had not been used for any pur-
pose for many years. In concluding that the Church had not
carried its burden of proof for establishing that a valid permit
existed, the court noted that the Church had “fail[ed] to sub-
mit any authority permitting an expired MUP under [County
zoning ordinance] Section 711 to be resurrected after the
expiration date of the one year period.” DCD # 76 at 10.
The district court held that “even if there is a hindsight
argument that the County approved use of the Building for
religious assembly in 1979,” the Church had produced no evi-
dence demonstrating that it or the owner of the property had
ever relied on any prior approval of such a use. DCD # 76 at
10-11. The court further found that the Church failed to “sub-
mit any evidence that it incurred substantial work and expense
in reliance on the existence of a MUP.” Having determined
that the Church did not reasonably rely on any facts omitted
or misrepresented by the County, and that any reliance on the
existence of a valid Use Permit was unreasonable, the district
court “conclude[d] that equitable estoppel principles do not
apply under the present circumstances.”5 DCD # 76 at 12.
5
The district court does not explicitly note whether it dismissed the
claim, or granted summary judgment to the County thereon. The order is
titled “ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR
LACK OF SUBJECT MATTER JURISDICTION.” Because it surveyed
the facts produced by the parties, it appears that the court granted sum-
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21179
The district court then examined the Church’s RLUIPA and
§ 1983 claims. It again held that because the Church had
failed to complete the Use Permit application process, these
claims were not ripe for review. In so concluding, the district
court relied on the legislative history of RLUIPA, which
showed that Congress did not intend for religious institutions
to be exempted from “applying for variances, special permits
or exceptions, hardship approval, or other relief” where they
did not encounter discrimination or unfair delay. DCD # 76
at 13-14 (citing 146 Cong. Rec. S.7774-1, Joint Statement of
Senators Hatch and Kennedy). It also relied on San Jose
Christian College v. City of Morgan Hill, 360 F.3d 1024,
1035 (9th Cir. 2004), for the proposition that “RLUIPA does
not eliminate the requirement that religious institutions [apply
for] changes to zoning regulations.” DCD # 76 at 13-14. The
court reasoned that it was possible that if the Church com-
pleted the Use Permit application, the County would grant it
and thereby moot the Church’s claims. It concluded that any
hardship suffered by the Church in the interim was caused by
the “high costs associated with completing the required envi-
ronmental studies, and not by any actions of County to hinder
[the Church’s] ability to obtain a MUP.” DCD # 76 at 14.
The Church argued that the ripeness inquiry could be split
into two time-frames: (1) the claims with respect to the Use
Permit process and the conduct of the County in issuing the
NOV to the Church, and (2) the conduct through the issuance
of the court’s preliminary injunction order. The former might
be considered unripe, but the latter might be ripe because the
Church could establish distinct harms for that period. The dis-
mary judgment to the County on the Church’s equitable estoppel claim
and the claim that a valid permit existed, while dismissing the remainder
of the claims as unripe. It is also possible that the district court merely
treated the equitable estoppel and existing permit arguments as threshold
issues before reaching the ripeness issue presented by the Church’s main
claims. In either case, this court’s review is de novo, see section II, infra,
so we proceed to examine the merits of these claims under the same lens.
21180 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
trict court rejected this argument, noting that “the underlying
issue remains the same: whether or not, after compliance with
applicable zoning and environmental regulations, the County
issues Guatay the requested MUP.” It found the “tone” of the
NOV “unfortunate,” but held that until the County determined
whether it would issue the Use Permit, the Church’s claims
were all unripe. DCD # 76 at 15.
The court also noted that the Church had available to it an
administrative remedy for “quickly and inexpensively” chal-
lenging the content of the scoping letter, and presumably the
costs associated with it, but that the Church had chosen not to
take advantage of that remedy. DCD # 76 at 15, n.7.
This timely appeal followed.
II. STANDARDS OF REVIEW
We review de novo the district court’s ruling on cross-
motions for summary judgment. Arakaki v. Haw., 314 F.3d
1091, 1094 (9th Cir. 2002). Ripeness is a question of law that
is also reviewed de novo. Carson Harbor Village Ltd. v. City
of Carson, 37 F.3d 468, 474 (9th Cir. 1994), overruled on
other grounds by WMX Techs. v. Miller, 104 F.3d 1133, 1136
(9th Cir. 1997).
III. DISCUSSION
A. Preliminary Issue: Existence of Valid Use Permit
[1] In its appellate briefs, the Church treats as a component
of its RLUIPA and constitutional claims—rather than as a
threshold issue or part of its equitable estoppel claim—the
issue of whether a Use Permit allowing religious practice on
the property existed. It appears the Church contends that the
district court’s ripeness determination was erroneous because
the court also incorrectly determined that there was no valid
Use Permit that allowed for religious use of the property,
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21181
arguing that the district court therefore erred in holding that
the Church would have to apply for a Use Permit before any
of its claims could ripen. Whatever the Church intended to
argue on this matter, it is clear that any claim relating to the
existence of a valid Use Permit allowing religious use on the
property was not an element of, or in any way related to, the
Church’s RLUIPA or constitutional claims. A claim alleging
that the County was wrongfully enforcing its zoning ordi-
nance because the Church already possessed a valid Use Per-
mit would be a matter of county or state law, the remedy for
which should be sought through the County’s administrative
process or through state courts. RLUIPA and § 1983 provide
remedies for violations of constitutional rights in the applica-
tion of local zoning laws, not for violations of local zoning
ordinances themselves.6 The Church did not, as it claims,
establish a prima facie showing that a RLUIPA or constitu-
tional violation occurred simply by presenting some evidence
to show that a valid permit might already exist.
However, if a valid Use Permit approving religious use of
the building existed it could moot the Church’s RLUIPA and
constitutional claims. In the lower court, the Church proffered
the testimony of various land use experts opining that the
1971 and 1979 Use Permits, which granted the permit modifi-
cation applications “as per plot plan” where the plot plans
included references to an existing church, validated the reli-
gious use of the property. Some of these experts opined that
the 1982 Use Permit allowing for conversion of the recreation
hall into a country western bar either expired or never vested
because the building was never used for that purpose; there-
fore the prior Use Permits allegedly permitting religious use
continued to apply throughout the Church’s tenure on the
property. The Church argues that because the County prof-
fered no qualified land use expert refuting the Church’s expert
6
The Church makes no claim that the County was violating RLUIPA or
the Church’s constitutional rights by wrongfully revoking the Church’s
Use Permit in a religiously discriminatory manner.
21182 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
testimony, the Church met its burden of proof for establishing
a prima facie case for a RLUIPA violation, the County failed
to meet its burden to refute the Church’s showing, and the dis-
trict court erred by granting summary judgment to the County.
The Church is mistaken, even if we were to construe it to
have argued that its experts established a prima facie showing
that a valid Use Permit existed. The district court was
required to consider each cross-motion for summary judgment
separately and to determine, viewing both motions, whether
there was any genuine issue of material fact. Fair Hous.
Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.
2001). But, contrary to the Church’s contentions, the County
did not have to submit any expert testimony in order to merit
summary judgment in its favor because the applicable zoning
laws and the granted permits themselves conclusively estab-
lished that even if the 1971 or 1979 Use Permits had some-
how allowed religious use of the property, these permits
expired long before the Church began using the property for
religious worship.7 The versions of the applicable County
zoning ordinance in force at the time of the 1971 and 1979
Use Permit approvals state in Section 711 that “[e]ach vari-
ance and permit heretofore or hereafter issued shall expire and
become null and void at the expiration of one (1) year after
the use for which it was issued shall have been discontinued.”
The Church produced no evidence establishing that the
building was actually used as a church during the period fol-
lowing the 1971 Use Permit’s approval. In fact, prior owner
Bragg stated there was no sign of a church when he bought
the property in 1977, and any reference to an existing church
on the 1979 permit modification application he submitted was
an error because the building had been sold and was only used
as a recreation hall and office. Further, the 1979 Use Permit
itself expressly states that it would expire on February 2,
7
We express no opinion as to whether these Use Permits did in fact
approve use of the property for religious services.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21183
1980, unless construction or use in reliance on that Use Per-
mit commenced prior to that date. The parties both acknowl-
edge that the building remained vacant and in disrepair for
several years before the Church moved in. Indeed, the
Church’s own pastor testified that as far as he knew, the recre-
ation building had not been used for any purpose for at least
ten years prior to the Church’s tenancy—long before the expi-
ration date of the 1979 permit.
[2] Thus, the period of the property’s disuse immediately
preceding the Church’s tenancy clearly exceeded the one-year
expiration terms of both Section 711 and the 1979 Use Per-
mit’s explicit terms. As the district court noted, the Church
failed to produce any evidence or law that would spare the
1971 or 1979 permits from the expiration provisions, even
assuming those permits originally allowed religious use of the
building.8 On appeal, the Church points to nothing more than
the expert testimony it proffered below. It thus still fails to
argue that any authority or facts exist that would save the per-
mits from expiration. Consequently, the district court did not
err in granting summary judgment to the County as to the
nonexistence of a valid Use Permit, because the Church’s
expert opinions failed to establish a genuine issue of material
fact in light of the undisputed evidence and clearly applicable
zoning ordinance.9 See Fed. R. Civ. P. 56; Matsushita Elec.
8
Indeed, the Church relied on an almost identical expiration provision
in the 1982 Use Permit for the country western bar to argue that that per-
mit was no longer valid, but made no effort to explain on appeal why only
one of the three permits subject to such a provision—the only one not
favoring its case—actually expired due to inaction.
9
The Church argues that, because it requested a trial by jury, the district
court violated the Seventh Amendment when it decided the issue of
whether there was an existing Use Permit allowing the Church to conduct
religious services on the property because the court was thereby resolving
issues of disputed fact. This claim is meritless. The Church moved for
summary judgment, and in doing so, asked the district court to determine
whether there were any disputed issues of material fact. Summary judg-
ment does not offend the Seventh Amendment right to a jury trial, so the
21184 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(“Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genu-
ine issue for trial.’ ” (citation omitted)).
B. Equitable Estoppel
[3] The Church argues that principles of equitable estoppel
should spare it from completing the Use Permit application
process. In order for this court to grant equitable estoppel, the
Church must establish four elements: (1) the party to be estop-
ped was “ apprised of the facts”; (2) the party to be estopped
intended that its conduct be acted upon, or acted such that the
claimant “had a right to believe it was so intended”; (3) the
claimant was “ignorant of the true state of facts”; and (4) “re-
lied upon [the] conduct to his injury.” Green v. Travelers
Indemnity Co., 185 Cal. App. 3d 544, 556 (Cal. Ct. App.
1986). If one of these elements is missing, we cannot grant
estoppel. Id. A party seeking to estop the government must
also show that it “incurs substantial expense in reasonable and
good faith reliance on some government act or omission.”
Toigo v. Town of Ross, 70 Cal. App. 4th 309, 321 (Cal. Ct.
App. 1998). Further, estoppel is used in the land use context
only in “ ‘the most extraordinary case where the injustice is
great and the precedent set by the estoppel is narrow.’ ” Id.(quoting Smith v. County of Santa Barbara, 7 Cal. App. 4th
770, 775 (Cal. Ct. App. 1992)). The Church has failed to meet
this burden.
Church’s only possible claim here is that the district court erred in deter-
mining that there was no genuine issue of material fact as to whether a Use
Permit existed. See Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072,
1077 n.3 (9th Cir. 1986) (“The Constitution only requires that bona fide
fact questions be submitted to a jury.”). As we have already noted, the
Church chose not to submit any evidence that the explicit terms of the per-
mits do not apply here or that for some other reason the permits did not
expire after having not been used for more than a year. Thus, the district
court properly granted summary judgment to the County on this matter.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21185
1. Ignorance of True Facts
[4] First, the Church cannot claim that it knew neither that
to use the recreation hall for religious services generally
required a Use Permit, nor that the Church in particular
needed to apply for one. Rice testified that she proactively
called to find out what was required to ensure the legality of
the Church’s use of the property immediately after the Church
moved into the building in 1986. At that time, an unidentified
County employee informed her that a Use Permit was neces-
sary. Although Rice testified that an unidentified County
worker later told her to take her paperwork back when she
tried to submit the Use Permit application, her testimony
makes clear that the worker did not explicitly state that the
County’s regulations did not require the Church to obtain a
permit; he only told her that it was “too confusing out there”
and not to worry about submitting a permit. Rice did not con-
tend that she understood him to be actually applying or inter-
preting the pertinent law. At most, this statement could be
construed to mean that the zoning regulation would not be
enforced at that particular time. See Golden Gate Water Ski
Club v. Cnty. of Contra Costa, 165 Cal. App. 4th 249, 258
(2008). Under California state law, however, parties cannot
rely on lack of enforcement, even in the form of previous
exemption grants, to establish entitlement to equitable estop-
pel. See id.; City of Goleta v. Sup. Ct., 147 P.3d 1037, 1043
(Cal. 2006).
[5] Even if the employee’s 1986 statement could have been
taken to mean that a permit was not necessary, it is clear that
by 1988, the Church, Pastor Peterson, Rice, and O’Flynn
knew that a Use Permit was required in order to “legalize” the
Church’s use of the property. The County’s statements in
1988 should have clarified any doubt that the Church might
have had after Rice’s encounter in 1986. Yet O’Flynn and the
Church never filed a completed application, despite the fact
that they had been apprised of the permit requirement multi-
ple times.
21186 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
2. Reasonable Reliance
[6] Additionally, as the district court noted, “[t]he record
reveals, even if there is a hindsight argument that the County
approved the use of the Building for religious assembly in
1979, that at no time did the current owner of the property nor
Guatay rely upon the purported prior approval of the [Use
Permit] to its detriment.” DCD # 76 at 10. O’Flynn’s and the
Church’s knowledge of the need for a Use Permit, multiple
efforts to obtain one, and ignorance of the prior existence of
any such permit undermine any claim that the Church actually
relied on an existing valid permit while conducting religious
services in the building.
Further, the Church could not have reasonably relied on
any of the County’s other actions—their granting the electri-
cal permit to Doug’s Electric, assessing the water system as
adequate for a 200-person church, assessing taxes, or advising
Rice not to turn in the permit application in 1986. First, the
taxes assessed to the Church were for personal property and
fixtures, not for the parcel itself. Second, the Church cites no
California cases applying estoppel on account of assessed
taxes, or imputing for estoppel purposes any tax collector’s
knowledge to another agency within the county government.
Even if we were to consider this argument, which we decline
to do,10 the Church could not have made it successfully. The
California Court of Appeal has rejected the theory that tax
10
This court declines to address arguments presented as bare assertions
not supported by legal argument that is set out “specifically and distinct-
ly.” Christian Legal Soc’y Chapter of Univ. of Cal. v. Wu, 626 F.3d 483,
487-88 (9th Cir. 2010); see also Humble v. Boeing Co., 305 F.3d 1004,
1012 (9th Cir. 2002) (“Federal Rule of Appellate Procedure 28(a)(9)(A)
requires that the appellant’s argument contain her ‘contentions and the rea-
sons for them, with citations to the authorities and parts of the record on
which the appellant relies,’ ” and, as such, the court deemed plaintiff ’s
claims abandoned where she failed to outline the elements discrimination
claims or explain how they related to her collective bargaining agreement.
(citations omitted)).
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21187
payments provide the basis of equitable estoppel in land use
disputes, absent some agreement between the government and
the land user. See Golden Gate Water Ski Club, 165 Cal. App.
4th at 258-59 (finding that the assessment of taxes on illegal
structures did not establish reliance meriting estoppel, where
plaintiff “[did] not contend its payment was based on some
understanding the structures thereby would be made legal or
that their illegality rendered them immune from taxation”).
Additionally, the Church provided no evidence showing
that Pastor Peterson or any other member of the Church knew
at any time prior to discovery that the County had granted an
electrical permit to Doug’s Electric for repairs on the prop-
erty. Nor did the Church produce evidence showing any
Church member was aware of the Department of Environ-
mental Health Services letter finding the water supply ade-
quate for a 200-person church.11 Similarly, the Church
produced no evidence nor argued that any member of the
Church even knew about—let alone actually relied upon—
any of the prior Use Permits when deciding whether to repair
the building. Thus, the Church has shown no actual reliance
on any actions by the County.
The Church cites to Congregation Etz Chaim v. City of Los
Angeles, 371 F.3d 1122 (9th Cir. 2004), to support its reliance
argument. This citation is inapposite. Congregation Etz
Chaim treated a distinct scenario in which the City of Los
Angeles granted the congregation’s application for a building
and grading permit after a long history of litigation, renova-
tion and settlement negotiations, and voluntary plan conces-
sions on the part of the congregation to comply with the city’s
11
Furthermore, since this letter did not purport to grant a Use Permit to
O’Flynn, and the Church proffered no authority demonstrating that any
department within the County system other than the Department of Plan-
ning and Land Use could legally act to grant a Use Permit, we see no rea-
son why any entity could reasonably rely on this letter as proof that the
County had approved O’Flynn’s desired change to property use.
21188 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
demands. Id. at 1123-24. We determined that the congrega-
tion was entitled to equitably estop the city from revoking the
granted building permit given the history of the parties, the
city’s express approval of the permit, and the congregation’s
incursion of substantial financial liabilities in direct reliance
on the permit. Id. at 1124-25. We rejected the city’s argument
that the permit had been granted in violation of sizing regula-
tions because the proposed size of the building was “clearly
delineated in the building plans that were reviewed at length
and approved by the City.” Id. at 1125. The city could not
“dispute that it had ample opportunity to review both the
plans and the Agreement before granting the permit.” Id.Thus, the city’s permit grant, after complete disclosure by the
congregation, induced reasonable reliance by the congrega-
tion, which is why we applied equitable estoppel. Id. Here, the
Church has alleged no County actions even approaching the
level of governmental inducement in Congregation Etz
Chaim, let alone any reasonable reliance on such governmen-
tal behavior as in that case.
Even the county employee’s statement to Rice to take back
her paperwork because it was “too confusing out there” and
“not to worry about it” could not establish reasonable reli-
ance. California courts have refused to apply estoppel where
county employees purportedly told land owners on multiple
occasions that permits were not required to run a bed and
breakfast on their land; their reliance on these statements was
unreasonable because the County had also informed the land-
owners that the operation of their inn violated its zoning laws.
See County of Sonoma v. Rex, 231 Cal. App. 3d 1289, 1297
(1991); see also City of Goleta, 147 P.3d at 1043 (declining
to find reasonable reliance where city previously exempted
project from regulations). Similarly here, since the County
informed the Church and O’Flynn in 1988 that a Use Permit
was required to “legalize” the Church’s use of the building,
it is clear that any continued reliance on the 1986 statement
was unreasonable.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21189
Lastly, the Church’s purported reliance on the County’s
lack of enforcement for the period that the Church inhabited
the recreation hall is not reasonable reliance meriting the
exercise of equity here. Golden Gate Water Ski Club, 165 Cal.
App. 4th at 254-59, determined that Contra Costa County’s
failure to enforce its similar permit requirement against a
water ski club and residential settlement for thirty-three years
did not require the application of equitable estoppel—even
though a county employee had stated early on that the county
would not “hassle” the club over the land use regulation
violations—because, as here, the county had never expressly
stated that the use was permitted. Id. The court held that:
[a]t the most, the County’s inaction for several years,
together with the representation of a single employee
in 1974, might have led the Club to believe the
amount of development existing in the early 1970’s
would be tolerated, at least during the administration
in place at that time. Nothing in the employee’s rep-
resentation or the County’s inaction reasonably
could lead the Club to believe the County never
would enforce its land use requirements.
Id. at 258. The court concluded that the county’s inactions
were simply not a reasonable basis upon which the club
should have relied before erecting additional structures on the
land; the improvements to the land therefore were no basis for
estoppel and the court concluded that the club had suffered no
actual injuries that could be imputed to the county. Likewise
here, the Church could not have reasonably relied on the
County’s lapsed enforcement of the zoning regulations when
it decided to make improvements to the building, especially
after the County had expressly stated to the Church that it
needed a Use Permit to operate a church legally on the prem-
ises. As in Golden Gate Water Ski Club, any damages that the
Church sustained relying upon the County’s delayed decision
to enforce the regulations—including the expense of submit-
ting the Use Permit application more than twenty years after
21190 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
it knew it was required to do so—must be attributed to the
Church’s unreasonable belief that the regulation might never
be enforced. Id. Simply put, reliance on non-enforcement
until “compelled to desist . . . is not an injury allowing the
defense of equitable estoppel.” Id. at 259.12
[7] Because it is clear the Church cannot establish at least
two of the four elements of equitable estoppel, we must affirm
the district court’s grant of summary judgment to defendants
on this issue. Green, 185 Cal. App. 3d at 556.
C. Ripeness
We agree with the district court’s decision to apply the Wil-
liamson County final decision requirement here and approve
the dismissal of the Church’s RLUIPA claims as unripe for
lack of a final decision: that reasoning encapsulates well why
the Church’s RLUIPA claims are unreviewable by this court
at this time.13 We cannot determine if the Church has suffered
a “substantial burden” under RLUIPA until at least one Use
Permit application has been submitted.14 The Church’s
12
Contrary to the Church’s contention, an earlier California Supreme
Court decision, Long Beach v. Mansell, 3 Cal. 3d 462 (1970), does not
render Golden Gate Water Ski Club inapplicable here. In Mansell, the city
had never protested the use of the lands at issue over the course of almost
seventy years, and thousands of residents would have been affected by the
city’s land use action. Id. at 472. The court found that the city’s complete
and total inaction, coupled with the vast number of affected residents,
amounted to the extraordinary circumstances meriting equitable estoppel.
Id. at 499. Such extreme circumstances are not presented here. See also
Golden Gate Water Ski Club, 165 Cal. App. 4th at 259-63 (distinguishing
Mansell from other zoning cases as involving “extraordinary circum-
stances”).
13
We do not find occasion today to extend the final decision ripeness
requirement to the Church’s RLUIPA-related § 1983 claims because they
have not been sufficiently argued.
14
RLUIPA provides that a government land-use regulation “that
imposes a substantial burden on the religious exercise of a . . . religious
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21191
remaining arguments asserting the ripeness of its other claims
are unavailing, and because the Church did not sufficiently
plead, its remaining § 1983 claims do not merit our review.
1. The Williamson County Final Decision Requirement
and Its Application to RLUIPA Claims
[8] In the landmark takings case Williamson County
Regional Planning Commission v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), the Supreme Court held that “[a]
claim that the application of government regulations effects a
taking of a property interest is not ripe until the government
entity charged with implementing the regulations has reached
a final decision regarding the application of the regulations to
the property at issue.” 473 U.S. at 186. The property owners
in that case had not yet submitted their plan for development,
nor had they filed even a single application for a variance, and
therefore, the Court held, their takings claim was not ripe
because there was no “final decision” regarding the permitted
use of the property to which it could look in making its deci-
assembly or institution” is unlawful “unless the government demonstrates
that imposition of the burden . . . is in furtherance of a compelling govern-
mental interest; and is the least restrictive means of furthering that com-
pelling governmental interest.” 42 U.S.C. § 2000cc(a)(1). These
provisions apply in any case in which “the substantial burden is imposed
in the implementation of a land use regulation or system of land use regu-
lations, under which a government makes, or has in place formal or infor-
mal procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the property
involved.” 42 U.S.C. § 2000cc(a)(2)(C).
This section provides for broad protection of the rights of religious
organizations, and encompasses a wider scope of conduct in defining “re-
ligious exercise” than traditional constitutional free exercise jurisprudence.
See Rocky Mountain Christian Church v. Bd. of Cnty. Comm’rs of Boulder
Cnty., 481 F. Supp. 2d 1213, 1223-24 (D. Colo. 2007). The Church bears
the burden of proving that the County’s application of its zoning ordinance
resulted in a substantial burden on its exercise of religion. San Jose Chris-
tian College, 360 F.3d at 1034.
21192 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
sion. Id. at 187-91.15 This court later applied the Williamson
County final decision requirement to takings claims as well.
Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir.
1989) (citing Williamson County, 473 U.S. at 186).
[9] Many of our sister circuits, as well as district courts
within our own circuit, have applied the Williamson County
final decision requirement to RLUIPA claims. Facing a fac-
tual scenario very similar to our own, and relying on this
court’s statement in Hoehne, the Second Circuit examined at
length the application of Williamson County to the RLUIPA
and First Amendment contexts. Murphy v. New Milford Zon-
ing Comm’n, 402 F.3d 342 (2d Cir. 2005). The Murphys
owned a single-family home in an area zoned for single-
family residential use. There they conducted large weekly
prayer meetings. Id. at 345. After an investigation into the
matter prompted by complaints from the Murphys’ neighbors,
the local zoning commission concluded that the prayer meet-
ings were not permitted uses for buildings zoned as single-
family homes and sent a letter to the Murphys informing them
that meetings as large as theirs violated the zoning regula-
tions. Id. The Murphys immediately filed suit. Id. The com-
mission then issued a formal cease-and-desist order, although
it did not have the power to issue any fines or convictions. Id.
at 345, 351. Rather than attempting to obtain a variance by
appealing the cease-and-desist order, the Murphys amended
their federal complaint to include First Amendment and
RLUIPA claims. Id. at 345.
15
In addition to the final decision requirement, the Court in Williamson
County articulated a second requirement governing the ripeness of a tak-
ings claim: exhaustion of the state remedial process. The Court reasoned
that the process might yield the property owner just compensation, thereby
mooting his takings claim against the government. 473 U.S. at 194-95.
The Court acknowledged that the two ripeness requirements—final deci-
sion and exhaustion—“often overlap” but are nonetheless distinct. Id. at
193. Today we extend only the final decision requirement to RLUIPA
claims; the exhaustion requirement in Williamson County was specific to
the takings context.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21193
On appeal, the Second Circuit applied Williamson County
to the Murphys’ First Amendment and RLUIPA claims, hold-
ing these claims unripe because the Murphys had failed to
appeal the cease-and-desist order and apply for a variance. Id.
at 347-53. The court noted that in land use contexts the Wil-
liamson County final decision requirement serves the essential
goal of ripeness jurisprudence: it helps federal courts avoid
entanglement in abstract disputes which would be better
defined and more easily resolved with a more complete and
concrete factual record. It noted that four considerations
undergirded its decision to apply this component of William-
son County to the RLUIPA context. Specifically, the final
decision requirement: (1) aids in developing a full record; (2)
is the sole means by which a court can know precisely how
the regulation at issue would finally be applied to the prop-
erty; (3) might provide the relief the landowner seeks without
requiring the courts to engage in unnecessary constitutional
analysis; and (4) accords with principles of federalism
because, by encouraging resolution of land use disputes at the
local level, it “evinces the judiciary’s appreciation that land
use disputes are uniquely matters of local concern.” William-
son County, 473 U.S. at 348-49 (citations omitted). The court
reasoned however that the requirement would not apply where
an appeal to the zoning board would be “futile”—such as
where the government was behaving obstinately, where the
board lacked discretion to grant any variance, or where the
zoning entity’s actions would be purely remedial, such as
where it had no power to engage in any decisionmaking. Id.The Second Circuit also noted that other circuits had also
extended this requirement to constitutional claims. Id. at 350.
The court concluded that because “Congress endeavored to
codify existing Free Exercise jurisprudence” when it enacted
RLUIPA, it did “not believe it necessary to distinguish the
RLUIPA claim from the First Amendment Free Exercise
claim when it [came] to [its] ripeness inquiry.” Id. at 351 (cit-
ing Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1239 (11th Cir. 2004), and Westchester Day School v.
21194 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
Vill. of Mamaroneck, 386 F.3d 183, 191 (2d Cir. 2004)). The
Murphy court acknowledged, however, that because the ripe-
ness doctrine was “somewhat relaxed” in the First Amend-
ment context, the final decision requirement should be
“cautiously applied.” Id. (citations omitted). Accordingly, it
added a preliminary inquiry to its determination of whether
the Murphys would be required to show that a final decision
had been reached: (1) whether the Murphys experienced any
immediate injury as a result of the government’s actions, and
(2) whether requiring them to pursue additional remedies
would further define their alleged injuries. Id.Answering these threshold questions, the court first con-
cluded that the Murphys had not alleged a colorable claim of
immediate injury because the commission that had issued the
cease-and-desist order had no power to fine or prosecute
them. Rather, the commission would have had to enforce the
action in state court, and that court would have had to deter-
mine whether any penalties would be necessary to deter future
violations. Id. Additionally, because enforcement would have
been stayed pending the determination of any enforcement
action, the Murphys were incorrect that their “only recourse
following the cease and desist order was to suspend their
prayer meetings, rendering their injury immediate.” Id.Second, the court determined that the alleged injury was ill-
defined in the record. For example, the record did not reveal
whether the zoning commission had enforced its regulations
in a discriminatory manner, nor could the parties agree on
what the challenged issue was in the case, nor even on who
the proper defendants were in the case. Id. Had the Murphys
pursued the recourse available to them at the local level, how-
ever, they might have fixed these infirmities; the zoning board
of appeals, mandated by Connecticut law, was well-equipped
to address and clarify “murky” issues such as these. Id. Had
the Murphys appealed the cease-and-desist order and
requested a variance from this board, they would not only
have been able to develop the factual record better—
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21195
determining more precisely the contours of their alleged
injury—but may also have received the relief they sought,
thereby sparing the court from premature entanglement in
these issues. The Second Circuit therefore found the Mur-
phys’ RLUIPA and First Amendment claims unripe because
of the Murphys’ failure to seek a variance or—in the language
of Williamson County—for their failure to present the court
with a final decision from the local land use authority.16 Id. at
352-53.
[10] All of the circuits to address this issue have applied
the final decision requirement to RLUIPA claims, as well as
to related First Amendment-based § 1983 claims when they
were presented, reasoning that the requirement of a final
decision—either on a variance application, a special use per-
mit application, or through a single appeal of a denied permit
—served the purposes of the ripeness doctrine, as outlined by
Murphy. See, e.g., Miles Christi Religious Order v. Twp. of
Northville, 629 F.3d 533, 537 (6th Cir. 2010); Grace Cmty.
Church v. Lenox Township, 544 F.3d 609, 616 (6th Cir.
2008); Congregation Anshei Roosevelt v. Planning & Zoning
Bd. of the Borough of Roosevelt, 338 Fed. Appx. 214, at *9-
15 (3d Cir. July 22, 2009) (unpublished).
This circuit’s district courts have likewise required finality
(but not exhaustion of administrative remedies) under Wil-
liamson County before finding RLUIPA claims ripe. See, e.g.,
Hale oKaula Church v. Maui Planning Comm’n, 2003 U.S.
Dist. LEXIS 24509, at *7 (D. Haw. March 24, 2003); Oblates
of St. Joseph v. Nichols, 2002 U.S. Dist. LEXIS 27672, at *19
(E.D. Cal. April 24, 2002). Other circuits’ district courts apply
the requirement as well. Roman Catholic Bishop of Spring-
field v. City of Springfield, 2011 U.S. Dist. LEXIS 345, at *21
16
It should be noted that the Murphy court did not extend the second
prong of the Williamson County ripeness test—the exhaustion of the state
remedial process—from the takings context to the RLUIPA context. Mur-
phy, 402 F.3d at 349. Nor do we apply that requirement here today.
21196 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
(D. Mass. Jan. 4, 2011); Shenkel United Church of Christ v.
North Coventry Twp., 2009 U.S. Dist. LEXIS 106314, *20-26
(E.D. Pa. Nov. 13, 2009); cf. Rocky Mountain Christian
Church, 481 F. Supp. 2d at 1223-24 (treating RLUIPA and
First Amendment claims as ripe where the county had already
denied the permit application and no further factual develop-
ment would help the court).
Additionally, although this court has not yet applied the
Williamson County final decision ripeness requirement to the
RLUIPA and related First Amendment contexts, it has held
that the final decision requirement is applicable to other con-
stitutional claims, including those brought under substantive
due process and equal protection theories, Hoehne, 870 F.2d
at 532, and in certain instances to procedural due process
claims arising out of the application of land use regulations as
well. Del Monte Dunes at Monterey, Ltd. v. City of Monterey
920 F.2d 1496, 1506 (9th Cir. 1990).
2. Application of the Final Decision Requirement Here
As in Murphy, requiring the Church to submit a full appli-
cation for a Use Permit before we can find its RLUIPA claims
ripe serves important purposes of the ripeness doctrine. This
will enable us to refer to a full record and to understand pre-
cisely how the Church is in fact allowed to use the building
before we engage in constitutional analysis. By requiring the
Church to seek recourse at the local level, this approach may
provide the Church with relief without expending further
court resources and it will enable us to respect principles of
federalism which counsel in favor of resolving land use dis-
putes locally.
Like the Murphy claimants, the Church here has not alleged
a colorable argument of immediate injury: it did not need to
vacate the premises upon receipt of the County’s communica-
tions, and it is currently enjoying use of the building for the
pendency of this suit; requiring one complete application from
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21197
the Church before we can regard its claims as ripe will enable
us to have a fuller record upon which to conduct a RLUIPA
analysis.
Moreover, the exceptions built into the Murphy analysis do
not apply here: the County has the power to grant the permit
that the Church needs, it has the power to engage in decision-
making, and there is no evidence that the Church’s application
would in any other respect be “futile”—though we address the
Church’s arguments to the contrary below. As such, the
Church’s RLUIPA claims are unripe because it has not sub-
mitted a single complete Use Permit application.
As we have explained before, “Ripeness ‘is drawn both
from Article III limitations on judicial power and from pru-
dential reasons for refusing to exercise jurisdiction.’ ”
McClung v. City of Sumner, 548 F.3d 1219, 1224 (9th Cir.
2008) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S.
43, 57 n.18 (1993)). As such, Article III ripeness, which is a
matter of constitutional law, is jurisdictional, while
“ ‘[p]rudential considerations of ripeness are discretionary.
. . .’ ” Id. (quoting Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1142 (9th Cir. 2000) (en banc)); see
also Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d
1115, 1121-1122 (9th Cir. 2010) (“The Article III case or con-
troversy requirement limits federal courts’ subject matter
jurisdiction by requiring, inter alia, that plaintiffs have stand-
ing and that claims be ‘ripe’ for adjudication.”).
The Supreme Court has treated the final decision require-
ment outlined in Williamson County as a matter of prudential
ripeness. See Suitum v. Tahoe Reg’l Planning Agency, 520
U.S. 725, 734 (1997). Nonetheless, our circuit continues to
treat ripeness in land use contexts—most pointedly in takings
cases—as a matter of both Article III and prudential concern.
McClung, 548 F.3d at 1224 (collecting cases).
21198 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
[11] Because we today apply the final decision ripeness
requirement outlined in Williamson County to the Church’s
RLUIPA claims, determining them to be premature for lack
of a final decision by the County, we need not decide whether
the Church’s claims are unripe as a matter of prudence or of
constitutional law. In either case, the Church’s failure to com-
plete even one full Use Permit application leaves us unable to
discern whether there is a true case or controversy, and any
resulting injury.17 Ultimately the County may grant the
Church a Use Permit upon the Church’s compliance with the
state and county requirements, effectively mooting the claims
upon which the Church now seeks relief from this court.
a. “Cease-and-Desist Orders” as a “Final Decision”
The Church contends that, unlike in Williamson County, its
claims here are not premature and it need not submit a com-
plete Use Permit application for its claims to ripen because
the County’s “cease and desist orders”18 were themselves the
17
For this reason, we reject the Church’s contention that the district
court erred because it dismissed the Church’s claims for lack of subject
matter jurisdiction. The district court’s only reference to subject matter
jurisdiction appeared in the caption to its order dismissing the Church’s
claims as unripe. DCD # 76 at 1. The County does not contest that the dis-
trict court had subject matter jurisdiction to entertain the Church’s claims
in the first instance in order to determine whether the matter was ripe to
proceed to trial. The entirety of the district court’s analysis, other than its
initial consideration and rejection of the state law equitable estoppel claim,
revolved around ripeness. That is the sole reason it cited for dismissing the
case without prejudice. DCD # 76 at 15-16. At most, this amounted to
imprecise captioning reflecting the fact that this circuit sometimes treats
ripeness as a prudential matter and sometimes treats it as one of Article
III constitutional concern, depending on how clearly the dispute and harms
are defined. Cf. McClung, 548 F.3d at 1224 (collecting cases). As such,
there was no error based on the district court’s characterization of its order
dismissing the Church’s claims.
18
The Church’s brief refers to multiple cease-and-desist orders. How-
ever it is clear from the record that the Church actually refers to a Notice
of Violation dated April 2008 and one letter dated May 2008 which might
be construed to be a cease-and-desist order.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21199
County’s final decision for Williamson County purposes. This
argument evinces a misunderstanding of the final decision
requirement and it fails. A “final decision” as contemplated
by Williamson County does not refer to a decision about
whether the Church is currently violating land use regulations
—as contained in the County’s communications to the Church
in April and May 2008. Rather, the final decision we need to
proceed on the merits of these claims is one regarding
whether the Church will or will not be granted a permit to use
the property as it wishes moving forward—which can only
result from a completed Use Permit application. In other
words, we cannot even begin to determine that the County has
definitively barred the Church from using the building as it
wishes until it has had the opportunity to evaluate a completed
application and has determined how it will apply its land use
regulations to the Church. This conclusion comports with
ripeness jurisprudence generally speaking, as well as with the
“general rule, [that] in the land use context, constitutional
challenges are ripe only when the administrative body issues
its ‘final definitive position regarding how it will apply the
regulations at issue to the particular land in question.’ ” See
Oblates of St. Joseph, 2002 U.S. Dist. LEXIS 27671, at *12
(citing Herrington v. Cnty. of Sonoma, 857 F.2d 567, 568-69
(9th Cir. 1988) (quotations omitted)).
b. Futility
The Church further argues that, even if the Williamson
County final decision requirement applies to its RLUIPA
claims, the Church’s claims are ripe because they fall within
that requirement’s exception: claimants need not further pur-
sue a final decision where to do so would be “futile.” The
Church argues that the financial burden it must undertake to
complete the application process would necessarily “destroy”
the Church, rendering the process in that sense “futile.”
However, the Church does not use the word “futility” in the
sense meant under Williamson County and its progeny in
21200 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
other land use contexts. Under the final decision requirement,
“futility” refers to conditions that make the process itself
impossible or highly unlikely to yield governmental approval
of the land use that claimants seek—such as government
obstinacy or where the only governmental body to which
claimants can appeal is unable to authorize claimants’ desired
land use. See, e.g., Hoehne, 870 F.2d at 535 (holding that it
would have been futile for a couple to submit additional appli-
cations because no variance was available for their needs, and
the county authorities had made clear that they would not
approve of the couple’s desired use of the land because they
had already re-zoned it); cf. Guru Nanak Sikh Soc’y v. Cnty.
of Sutter, 456 F.3d 978, 989-90 (9th Cir. 2006) (holding that
no additional applications were necessary where there were
no zones providing for religious use as of right, county repeat-
edly denied temple’s application for conditional use permits
despite temple’s efforts to comply with County’s requested
plan modifications and denial reasons, and reasoning of coun-
ty’s previous denial made the success of any future permit
application highly unlikely). The Church has presented no
evidence that the County will not or cannot issue a Use Permit
once it has received a complete application, and once the
Church has complied with what is required of all applicants.
Although the Church’s alleged financial straits are lamenta-
ble, this is no fault of the County’s and is no reason for us to
except the Church from the obligations of all Use Permit
applicants. Finally, even if the Church had made a sufficient
“futility” argument, Ninth Circuit jurisprudence in this area
still does not excuse permit-seekers who fall into this excep-
tion from the final decision requirement from submitting at
least one complete permit application. Herrington, 857 F.2d
at 569 (“A property owner cannot rely on the futility excep-
tion until he or she makes at least one meaningful applica-
tion.”) (citations omitted).
3. Use Permit Application Process Itself as Substantial
Burden
It seems that the Church offers an alternate ripeness theory,
Williamson County notwithstanding, arguing that the costs of
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21201
complying with the scoping letter are themselves a “substan-
tial burden” under RLUIPA. The Church characterizes the
costs of compliance with the scoping letter as “unreasonable
and unattainable” for a non-profit organization in its position,
and implies that the County has deliberately imposed these
requirements to quash the Church’s religious exercise. Our
application of Williamson County today does not foreclose an
argument that financial obligations alone might constitute a
substantial burden for the purposes of RLUIPA, but neither do
we address that question today. Even if we were to determine
that such an argument could be made, the record here is insuf-
ficient for us to reach the merits of this “cost-as-burden”
claim.
Where, as here, a religious institution is required to comply
with a facially neutral and generally applicable zoning
scheme, this court must “examine the particular burden
imposed by the implementation of the relevant zoning code
on the claimant’s religious exercise and determine, on the
facts of each case, whether that burden is ‘substantial’ ” for
the purposes of RLUIPA. Int’l Church of Foursquare Gospel
v. City of San Leandro, 2011 WL 1518980 at *6 (9th Cir.
2011, April 22, 2011) (citing Guru Nanak, 456 F.3d at 987).
The claimant bears the burden of proof. Id.Here, however, the record contains no finalized account of
the “particular burden” that the Church must shoulder—what
the Church will actually have to pay or do to comply with the
County’s process and secure a permit. As mentioned above,
the district court observed that the Church had the option to
“quickly and inexpensively” have senior County officials
review the scoping letter through the County’s Project Issue
Resolution process. Mentioned in the scoping letter itself, the
issue resolution process would have enabled County officials
to consider “disagreements with staff interpretations of codes
or ordinances, requests for additional information or studies,
or disagreements regarding project related processing require-
ments.” Had the Church pursued these remedies, we might
21202 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
have known its definitive, particularized obligations, but it has
not done so. All that the record shows regarding the Church’s
projected costs of compliance with the scoping letter is the
widely varying estimates of its expert ($214,250-$314,250).
Even if these numbers were both accurate and more precise,
they would not tell us the Church’s definitive obligations if
the Church had not first availed itself of the available admin-
istrative remedies. Thus, we cannot determine whether this
permit application process itself constitutes a substantial bur-
den on the Church, and we need not pass judgment on the
broader question of whether costs of some magnitude alone
can ever constitute a substantial burden for the purposes of
RLUIPA claims.19
[12] Given that the Church’s claims—that it has already
suffered a “substantial burden” under RLUIPA or that it will
in the future by submitting a Use Permit application—are
unripe, the County was not required to justify its enforcement
mechanism by showing that it served a compelling interest or
was the least restrictive means of doing so, contrary to the
Church’s averment. See 42 U.S.C. § 2000cc (requiring show-
ing of compelling interest and least restrictive means only
where there is a showing of a substantial burden); San Jose
Christian College, 360 F.3d at 1030-34 (neutral law of gen-
eral application need only survive rational basis review on
free exercise challenge where burden is indirect, and content-
neutral zoning ordinances are treated as time, place and man-
ner restrictions requiring only substantial government interest,
unless shown to be pretextual, in the context of free speech
challenges).
19
Similarly, we do not today hold that simply because a zoning regula-
tion is neutral and generally applicable it is by definition incapable of
imposing a substantial burden on religious exercise. Indeed, this court
recently restated its long-held conclusion that there is no such tautology.
Int’l Church of the Foursquare Gospel, 2011 WL 1518980 at *6. How-
ever, it is worth noting that the Church’s expert testified that his estimate
for the costs of the Church’s compliance with the scoping letter would be
the same for any organization applying for a MUP for this property.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21203
4. Remaining Claims under § 1983
Before turning to the Church’s individual § 1983 claims,
we address the Church’s argument that the district court erro-
neously held that its § 1983 claims were not ripe because it
failed to exhaust administrative remedies. We need not
address the merits of this argument, as the district court did
not so hold. As discussed above, the district court did observe
that the Church had other administrative remedies available to
it to challenge the contents of the scoping letter. Nonetheless,
the district court’s ripeness determination was not predicated
on the Church taking advantage of this opportunity, DCD #76
at 15-16 & n.7, so there could be no attendant error. Rather,
it held that the Church’s § 1983 claims were not ripe for the
same reasons its RLUIPA claims were not ripe: the Church
failed to complete the application process for a Use Permit,
which would have provided a final decision as to the Church’s
ability to use the property as it wished, and therefore allowed
the court to review any constitutional violations. See id.
a. Procedural Due Process
The Church alleges that the County has already violated its
procedural due process rights in violation of § 1983 by send-
ing the April 2008 NOV and the May 2008 cease-and-desist
order,20 and that the district court therefore erred in dismissing
its procedural due process claims as unripe.
[13] To obtain relief on § 1983 claims based upon proce-
dural due process, the plaintiff must establish the existence of
“(1) a liberty or property interest protected by the Constitu-
tion; (2) a deprivation of the interest by the government; [and]
20
The Church’s brief refers to multiple cease and desist orders from
April and May 2008, although only one was ever sent. Because the only
April 2008 communication between the parties that might fit this descrip-
tion was the NOV, we assume the Church means to challenge the issuance
of the NOV as a violation of its procedural due process rights.
21204 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
(3) lack of process.” Portman v. Cty. of Santa Clara, 995 F.2d
898, 904 (9th Cir. 1993). This court has held that procedural
due process claims may in certain land use contexts be ripe
even where the underlying substantive claims remain unripe
due to the absence of a final decision regarding land use. Har-
ris v. Cty. of Riverside, 904 F.2d 497, 501 (9th Cir. 1990).
However, such procedural due process claims ripen only
when it is clear that a distinct deprivation of a constitutionally
protected interest in liberty or property has already occurred,
thereby warranting a federal court’s consideration of the ques-
tion of whether the deprived party received the process to
which it was due.
It is not entirely clear from its brief if the Church’s proce-
dural due process claims are based on the alleged deprivation
of a property interest or on the deprivation of a liberty inter-
est, or both, but in any event it has not made a sufficient
threshold showing that there has been a deprivation of any
kind. See, e.g., Newman v. Sathyavaglswaran, 287 F.3d 786,
789 (9th Circ. 2002) (stating that without the initial showing
that a deprivation has occurred, no procedural due process
analysis can proceed).
[14] The Church presents no legal argument here to dem-
onstrate that such a deprivation has already occurred, nor do
the facts speak for themselves on this matter. In this case,
although strongly worded, the County’s NOV and cease-and-
desist order did not themselves deprive the Church of any
interests. The County would have had to bring an enforcement
action in court in order to actually enforce the zoning
regulations—and it in fact notified the Church of that in its
May 2008 letter. Without bringing the Church to court, the
County had no power to, for example, padlock the building
doors or make arrests, nor did it take any such action. Had the
County brought the Church to court, the Church would have
received notice, an opportunity to be heard, and an opportu-
nity to present evidence; at the very least, we would have a
record upon which to make a judgment about whether the
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21205
Church had received sufficient process. Instead, the Church
chose to vacate the property and bring the County to court.
And the Church has continued to hold its services for the
entirety of this process: it initially held services elsewhere
(albeit at some inconvenience) and since November 2008 it
has enjoyed the use of its previous building during the pen-
dency of this suit. While the fraught relations between the
County and the Church are lamentable, the Church’s reaction
to the County’s communications in the spring of 2008 does
not amount to the County’s depriving the Church of a liberty
interest recognizable under Due Process Clause jurisprudence.
Without such a deprivation, procedural due process claims are
moot. See, e.g., Zinermon v. Burch, 494 U.S. 113, 126 (1990)
(“The constitutional violation actionable under § 1983 is not
complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.”).21
Moreover, the Church has not made a legal argument dem-
onstrating that it even had a constitutionally protected prop-
erty interest, of which it might have conceivably been
deprived, in the use of the building without a valid Use Permit
and in violation of land use regulations. Protected property
interests are not created by the Constitution, but by “existing
rules or understandings that stem from an independent source
such as state law rules or understandings that secure certain
benefits and that support claims of entitlement to those bene-
21
Notably, the Church did not include in the argument section of its
briefs any contention that the County’s revocation of the certificate of
occupancy for the building (following discovery of the code violations
upon inspection) was itself a violation of procedural due process. Instead,
the Church made a vague reference to due process concerns related to the
cease-and-desist orders in the portion of the fact section of its brief dis-
cussing the certificate of revocation, without ever contending that the
revocation was without the proper procedural due process. We refuse to
consider arguments made only in passing, and refuse to assemble an argu-
ment for appellant from various statements made throughout its brief. To
merit our consideration legal theories must be argued “specifically and
distinctly.” Christian Legal Soc’y, 626 F.3d at 487-88.
21206 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
fits.” Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th
Cir. 2005) (citing Bd. of Regents v. Roth, 408 U.S. 564,
577(1972)). Here, the Church has provided no California law
or precedent establishing that it had a vested property right in
using the building for religious services where it never
obtained a permit for doing so and the applicable zoning ordi-
nance never permitted use of the property for religious ser-
vices at any point during the Church’s tenancy. The Church
admits that it never obtained a valid Use Permit and it has not
argued that it had a property interest in the Use Permit process
itself. Cf. Parks v. Watson, 716 F.2d 646, 656-57 (9th Cir.
1983) (discussing how particular procedures can amount to
“entitlements” protected by due process). Additionally, as dis-
cussed above, the Church did not reasonably rely on any
actions of the County when it settled into the recreation hall,
made repairs, or invested in the property, so it could not have
argued that it had a vested property interest in the expectation
of using the property for religious assembly.22 Cf. Harris, 904
22
Even were we to consider an argument that revocation of the certifi-
cate of occupancy was in violation of the Church’s federal or state proce-
dural due process rights, the Church has failed to explain why the
revocation, authorized by the state and county building codes in order to
preserve the health and safety of the occupants and compliance with the
law, see Cal. Code Regs., tit.24, part 2, § 111.4 (2010) (previously Cal.
Code Regs. tit. 24, § 109.6); San Diego County Code of Regulatory Ordi-
nances § 91.1.111.4, would not have been adequately addressed in post-
deprivation appeals procedures available in both the state and County
codes, see Cal. Code. Regs., tit.24, part 2, § 113.1 (previously Cal. Code
Regs., tit. 24, § 105.1); San Diego County Code of Regulatory Ordinances
§ 91.1.113.1. It appears that the Church’s belief that there were no real
safety hazards and that revocation was wrongful would have been appro-
priately considered through the County’s available appeals process, of
which the Church chose not to avail itself. The Church also omits any
argument as to why its failure to use the available appeals processes does
not bar its procedural due process claim. See Hodel v. Va. Surface Mining
& Reclamation Ass’n, 452 U.S. 264, 300 (1981)(“[D]eprivation of prop-
erty to protect the public health and safety is ‘[one] of the oldest exam-
ples’ of permissible summary action” for which pre-deprivation
procedures are not required. (citation omitted)); Raditch v. United States,
929 F.2d 478, 482 (9th Cir. 1991). We decline to reach arguments so
vastly undelineated on appeal.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21207
F.2d at 503 (quoting Washington ex rel. Seattle Title Trust
Co. v. Roberge, 278 U.S. 116, 121(1928) (stating that prop-
erty use expectations can rise to the level of protected prop-
erty interests)).
The Church merely references its lease of the Park’s recre-
ation building over the years, its use of the building, and its
investments in and improvements on the property. Then, cit-
ing Memphis Light, Gas, and Water Division v. Craft, 436
U.S. 1(1978), the Church asserts that these factors taken
together created the “significant property interest” for which
a pre-deprivation hearing is required. This ignores the analy-
sis undertaken in Craft. The Court in that case explained that
the underlying substantive interest of a due process claim is
created by state law and that only once that interest is deter-
mined can a federal court proceed with constitutional analysis
to ascertain whether that underlying substantive interest “rises
to the level of a ‘legitimate claim of entitlement’ protected by
the Due Process Clause.’ ” Id. at 9 (citing Roth, 408 U.S. at
577 (1972); Perry v. Sindermann, 408 U.S. 593, 602 (1972)).
In Craft, the Court had sufficient basis in Tennessee deci-
sional law to determine that an underlying substantive interest
existed in the first place; we have no such argument to draw
upon here to allow us to determine that a “substantive” prop-
erty interest exists, much less to engage in the constitutional
analysis of determining whether such a property interest war-
rants the protection of the Due Process Clause. Craft does not
define what constitutes a significant property interest, and cer-
tainly does not address whether the mere illegal use and
improvement of a leased building—without the required Use
Permit or even building permits for the improvements—can
establish the requisite property interest for a procedural due
process claim.
[15] In the absence of the Church presenting a viable argu-
ment regarding what property interests are at stake, the
County is entitled to summary judgment on the Church’s pro-
21208 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
cedural due process claim. See, e.g., Wood v. United States,
2006 WL 2829829 at *8 (E.D. Cal. 2006).
Although the Church may also have premised its proce-
dural due process claims on deprivations of liberty interests,
this is not entirely clear. In laundry-list form, the Church
asserts that the County had deprived it of “federally protected
constitutional rights (i.e., free exercise of religion, free
speech, free assembly, and free association).” In its proce-
dural due process argument, the Church says nothing beyond
this to characterize the liberty interests of which it asserts it
has been deprived. It briefly characterizes the actions of the
County that it believes have abridged its First Amendment
rights, but it fails to explain how its choice to vacate a build-
ing and hold services elsewhere for a discrete period of time,
instead of applying for a Use Permit or otherwise challenging
the County’s enforcement actions through existing local pro-
cedures, effected a deprivation of a liberty interest. Thus, the
Church’s lengthy discussion of the process to which it
believes it is entitled fails to provide the necessary foundation.
The Church neither presents an argument regarding which of
the County’s actions constituted a “deprivation” for proce-
dural due process purposes, nor an argument establishing
which interests it might have been deprived of in the first
place.
Finally, the Church also argues that the County has violated
state law, in turn causing a deprivation of a constitutional
right, which forms the basis of a ripe and actionable § 1983
claim under Hallstrom v. Garden City, 991 F.2d 1473, 1482
n.22 (9th Cir. 1993). The Church reasons that the County’s
actions violated California state procedural due process
requirements and resulted in the deprivation of the Church’s
rights to free exercise, speech, assembly, and association, and
that we should therefore find that all of the Church’s § 1983
claims are ripe based on the alleged procedural due process
violation, even absent a final determination of the Church’s
eligibility for a Use Permit.
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21209
As we discussed above, the Church has failed to establish
a procedural due process violation under state or federal law,
so Hallstrom cannot help the Church avoid the final decision
requirement, even if it stood for so broad a proposition as the
Church contends. Further, even if the Church had established
a state procedural due process violation, Hallstrom would still
be of limited help, if any; it does not, as the Church contends,
contain a holding that any constitutional violations emanating
from a state procedural due process violation are automati-
cally ripened. See Hallstrom, 991 F.2d 1482 n.22. That case
merely provides that a violation of state law that results in the
deprivation of federally protected constitutional rights may
give rise to a § 1983 claim for the deprivation of a property
or liberty interest. Id.23 The Church provides no argument or
legal authority explaining why a final decision would not help
to define the injuries, or why a ruling on these claims would
not later be mooted by the grant of a valid Use Permit. It pro-
vides no support for its argument that the § 1983 claims are
independently ripe on this basis. As we have said, “[w]e will
not manufacture arguments for an appellant, and a bare asser-
tion does not preserve a claim, particularly when, as here, a
host of other issues are presented for review. As the Seventh
Circuit . . . stated aptly: ‘judges are not like pigs, hunting for
truffles buried in briefs.’ ” Greenwood v. FAA, 28 F.3d 971,
977 (9th Cir. 1994) (quoting United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (per curiam)).
b. Free Exercise, Speech, Assembly, and Association
[16] The Church makes no discernible independent argu-
ment that its free exercise, speech, assembly, or association
23
In Hallstrom we held that an Idaho state statute providing for a timely
probable cause hearing before a magistrate created a constitutionally pro-
tected liberty interest such that a defendant could not be held indefinitely
without presentation to the magistrate merely because the defendant
refused to submit to a county’s standard booking procedures. Id. at 1481-
82.
21210 GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY
claims were ripe for review. It merely cites to RLUIPA and
general precedent recognizing the existence of these constitu-
tional rights, and attempts to distinguish Williamson County.
Even assuming that the Church alleged facts sufficient to
establish that the County instituted enforcement of the zoning
regulation, sent the cease-and-desist order, or decided to con-
duct the premises inspection all due to religious animus, the
Church has provided no cases or even a legal theory address-
ing why its claims would not be better suited for consideration
once a final decision on the Use Permit application issues and
the extent of the injury is fully defined. Because the Church
makes only bare assertions and does not support its free exer-
cise, speech, assembly, or association claims with any distinct
legal argument whatsoever, any contention that they were
independently ripe is deemed abandoned on appeal. See
Christian Legal Soc’y, 626 F.3d at 487-88. Accordingly, we
do not decide today the open question of whether Williamson
County’s final decision requirement should apply to First
Amendment claims in the land use context.
IV. CONCLUSION
We agree with the district court that the Church failed to
establish that its RLUIPA claims were ripe absent a final
determination from the County on its Use Permit application
and hold that the Church failed to make a sufficient showing
of the ripeness of any of its other constitutional claims.
Because the Church has not even completed the requirements
for the County’s review of a single application, there is no
way to know whether the Church will receive the permit it
seeks. If the Church completes the application process,
including the attendant environmental tests, and the County
denies the Church’s request for a Use Permit, the Church may
re-file. Similarly, while we do not today foreclose the possi-
bility that the Church might one day present a ripe “cost-as-
burden” argument, it has not presented a complete enough
record for us to determine that it has done so here: we do not
know the finalized, particularized burden the Church will
GUATAY CHRISTIAN FELLOWSHIP v. SAN DIEGO COUNTY 21211
have to shoulder. The district court was correct in declining
to address these claims.
AFFIRMED.24
24
Accordingly, we do not proceed to determine the merits of any
RLUIPA or constitutional claims, and express no opinion as to whether
the Church will be able to carry its burden of proving that the County’s
actions amounted to a substantial burden on its First Amendment rights.