EPONA, LLC, a California limited liability company; MICHAEL FOWLER, an individual, Plaintiffs-Appellants, v. COUNTY OF VENTURA, a political subdivision of the State of California; DOES, 1–25, Defendants-Appellees.
No. 17-55472
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 7, 2017
D.C. No. 2:16-cv-06372-DMG-PLA. Argued and Submitted October 3, 2017 Pasadena, California. Before: DIANA GRIBBON MOTZ, MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.
The Honorable Diana Gribbon Motz, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
SUMMARY**
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
Civil Rights
The panel reversed the district court‘s dismissal of appellants’ First Amendment claim, affirmed the dismissal of appellants’ Religious Land Use and Institutionalized Persons Act claim, vacated the denial of a preliminary injunction and remanded in an action challenging the County of Ventura‘s permitting scheme, which requires individuals to obtain a Conditional Use Permit to host weddings on their properties.
Applying Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012), the panel first held that appellants functioned as wedding “vendors” because they sought to profit from facilitating and providing a commercial space for weddings. The panel held that because they were wedding vendors, they may suffer economic injury as a result of the permitting scheme, and an injunction may redress this harm. Thus, the panel held that appellants had Article III standing to bring their First Amendment challenge.
The panel reversed the dismissal of appellants’ First Amendment claim, holding that the permitting scheme lacked definite and objective standards and also failed to
COUNSEL
Matthew D. Hinks (argued) and Benjamin M. Reznik, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, California, for Plaintiffs-Appellants.
Ronda J. McKaig (argued), Assistant County Counsel; Leroy Smith, County Counsel; County of Ventura County Counsel, Ventura, California; for Defendants-Appellees.
OPINION
M. SMITH, Circuit Judge:
Epona, LLC and Michael Fowler (collectively, Appellants) appeal the district court‘s order dismissing Appellants’ First Amendment and Religious Land Use and Institutionalized Persons (RLUIPA),
We reverse the dismissal of Appellants’ First Amendment claim because the permitting scheme vests permitting officials with unbridled discretion. We affirm the dismissal of Appellants’ equal treatment claim under RLUIPA because neither Appellant is a religious institution or assembly. We vacate the district court‘s denial of Appellants’ motion for a preliminary injunction, and remand to the district court for its consideration in the first instance because the motion is no longer moot.
FACTUAL AND PROCEDURAL BACKGROUND
Michael Fowler is Epona, LLC‘s sole member, and owns a 40-acre parcel of land (the property) in Ventura County. The property is zoned for agricultural use, and neighboring properties either are agricultural, or are designated as open spaces. Fowler created a garden area on the property, which he hoped to rent out for use in wedding ceremonies and related events.
The County‘s Non-Coastal Zoning Ordinance (NCZO) describes permissible land uses in specific zones. NCZO § 8105-4. Outdoor weddings are classified as “temporary outdoor” events under NCZO § 8102-0, which encompasses “[o]utdoor recreational events such as harvest festivals, amusement rides, historic re-enactments, animal events, art shows, concerts, craft fairs, weddings, and religious revival meetings.” In order to hold a temporary outdoor event on an agriculturally zoned property, the landowner must apply for and receive a CUP.
The NCZO provides for issuance of a CUP when certain standards are satisfied, or where “such conditions and
Appellants’ CUP application sought permission to use the property for up to 60 temporary outdoor events per year, including weddings. County agencies reviewed the application, and found there were no grounds for denying the permit.
The County‘s Planning Commission held a public hearing on Appellants’ application, at which County staff presented its no-impact findings. After receiving objections from neighboring land owners, the Commission denied the application. In a subsequently issued resolution, the Commission based its denial on the following findings:
(1) The venue is not compatible with the rural community . . . ;
(2) The venue has the potential to impair the utility of neighboring property or uses
and is inconsistent with the finding set forth in the NCZO § 8111-1.2.1.1.c; and (3) The venue has the potential to be detrimental to the public interest, health, safety, convenience, or welfare and is inconsistent with the finding set forth in the NCZO § 8111-1.2.1.1.d[.]
Appellants appealed the denial of their CUP application to the Board of Supervisors. Contrary to its recommendation in the previous report, this time the Commission staff prepared a report that recommended denial of the CUP application. The Board split its vote evenly on the application, which had the effect of affirming the Commission‘s denial.
Appellants filed a complaint in federal district court on August 24, 2016, followed by an amended complaint on October 7, 2016, both of which alleged (1) abridgment of free speech in violation of the First Amendment and California Constitution Article 1, § 2; (2) violation of RLUIPA; (3) denial of equal protection under the United States and California Constitutions; (4) civil rights violations pursuant to
The district court granted the County‘s motion to dismiss and denied Appellants’ motion for a preliminary injunction. The district court held that Appellants could only challenge
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to
I. Standing
The County argues that Appellants lack standing because (1) they failed to allege a sufficient nexus to the third parties whose rights they are asserting, (2) the affected third parties are fully capable of asserting their own rights, and (3) Appellants’ purported injuries are not redressable. These arguments fail.
In order to have Article III standing, a plaintiff must establish (1) that it has suffered an injury in fact that is both concrete and particularized, and actual or imminent; (2) causation, meaning that the injury is fairly traceable to the complained-of action; and (3) redressability, which requires a likelihood that the injury will be remedied by a decision in the plaintiff‘s favor. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). “Generally, a plaintiff may only bring a claim on his own behalf, and may not raise claims based on the rights of another party.” Pony v. County of Los Angeles, 433 F.3d 1138, 1146 (9th Cir. 2006). However, “vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976).
We addressed challenges similar to the County‘s first two arguments regarding third-party standing in Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012). There, a pastor who performed wedding ceremonies, and a non-profit association of wedding planners, challenged Hawaii‘s permitting scheme for commercial weddings on public beaches. See id. at 793, 795–96. We held that the association members, each of whom we characterized as a wedding “vendor,” had
The County‘s redressability argument fares no better. The County argues that Appellants’ requested remedy—an injunction against the challenged provisions of the County‘s permitting scheme—would fail to redress Appellants’ injury. The County reasons that (1) per County regulation, land use is prohibited unless specifically allowed, and (2) outdoor weddings are allowed only if an individual has a CUP under the NCZO; therefore, (3) if the CUP scheme is invalidated, there will be no means of acquiring a permit for outdoor weddings, and such weddings will be entirely disallowed. But application of the County‘s logic would
As in Kaahumanu, Appellants function as wedding “vendors” because they seek to profit from facilitating and providing a commercial space for weddings. Because they are wedding vendors, they may suffer economic injury as a result of the CUP scheme, and an injunction may redress this harm.4 Thus, pursuant to our holding in Kaahumanu, Appellants have Article III standing to bring their First Amendment challenge.
II. First Amendment Claim
A. Appellants can bring a facial challenge to the County‘s permitting scheme
In general, courts disfavor facial challenges to legislation. S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th Cir. 2004). However, the Supreme Court permits facial challenges to prior restraints of protected
The County argues that Appellants may not bring a facial challenge to the CUP scheme because the NCZO does not directly regulate marriage ceremonies or their content. The County supports its argument by reference to Kaahumanu, in which we held that the plaintiffs could only bring an as-applied challenge to a regulation requiring a permit for all commercial activity on state beaches, except to the extent that that regulation vested broad discretion in permitting officials. See Kaahumanu, 682 F.3d at 800–02.
Two points are relevant. First, unlike the regulation at issue in Kaahumanu, which applied broadly to every commercial activity on state beaches, the regulation at issue
Here, Appellants challenge the NCZO on the basis that it confers unbridled discretion on the permitting officials reviewing their application to hold commercial weddings. Thus, Appellants may bring a facial challenge.
“While ‘prior restraints are not unconstitutional per se[,] any system of prior restraint comes to [the court] bearing a heavy presumption against its constitutional validity.‘” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) (alterations omitted) (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975)). It is well settled that “an ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)). The heart of Appellants’ argument is that the NCZO imposes an unconstitutional prior restraint on protected speech by vesting permitting officials with unbridled discretion due to the CUP scheme‘s (1) lack of definite and objective standards for granting a permit, and (2) failure to specify a timeframe within which a permit must be granted or denied. If the NCZO grants permitting officials an impermissible degree of discretion, then the regulation fails to qualify as a valid time, place, and manner restriction on speech. See Kaahumanu, 682 F.3d at 806–07.
1. The CUP scheme lacks definite and objective standards
“[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth, 394 U.S. at 150–51; see also City of Lakewood, 486 U.S. at 755–56. That is, absent definite and objective guiding standards,
Our cases reflect the context-specific nature of this unbridled discretion inquiry. In Moreno Valley, we struck down an ordinance under which, prior to granting a permit, officials were required to find that a structure or sign would not “have a harmful effect upon the health or welfare of the general public” or be “detrimental to the welfare of the general public . . . [or] to the aesthetic quality of the community or the surrounding land uses.” Id. at 818–19. The abstract language of the ordinance, paired with the lack of any requirement that officials provide some “evidence to support the conclusion that a particular structure or sign is detrimental to the community,” impermissibly granted officials “unbridled discretion in determining whether a particular structure or sign [would] be harmful to the community‘s health, welfare, or ‘aesthetic quality.‘” Id. at 819.
We subsequently rejected a First Amendment challenge to a permitting scheme in G.K. Ltd. Travel, holding that the sign code at issue there contained sufficient guidelines to avoid the dangers posed by unbridled official discretion. 436 F.3d at 1083. The code required that permitting officials assess whether a sign was “compatible with the surrounding environment.” Id. While this requirement, standing on its
In a third case, Desert Outdoor Advertising, Inc. v. City of Oakland, 506 F.3d 798 (9th Cir. 2007), we addressed permitting guidelines that “f[ell] somewhere between the abstract standards invalidated in Moreno Valley and the more explicit criteria and procedural requirements upheld in G.K. Limited Travel.” Id. at 807. Officials were required to determine whether (1) the denial of a variance from the applicable sign restrictions “would deprive the applicant of privileges enjoyed by owners of similarly zoned property,” (2) a variance would confer a “special privilege” upon the applicant, and (3) strict compliance with the code would “result in practical difficulty or unnecessary hardship inconsistent with the purposes of the zoning restrictions, due to unique physical or topographic circumstances or conditions of design.”6 Id. at 806. We held that while the procedure‘s requirements were “somewhat elastic” and required “reasonable discretion to be exercised by the permitting authority,” they nevertheless contained “appropriate standards cabining the [City‘s] discretion.” Id.
As with the scheme in City of Oakland, the scheme here falls between Moreno Valley and G.K. Ltd. Travel. To obtain permit approval under the amended CUP scheme, an applicant must prove “to the satisfaction of the appropriate decision-making authority,” that seven conditions can be satisfied. The proposed use must be:
(a) “consistent with the intent and provisions of the County‘s General Plan and of Division 8, Chapters 1 and 2, of the Ventura County Ordinance Code;”7
(b) “compatible with the character of surrounding, legally established development;”
(c) “not [] obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;”
(d) “not [] detrimental to the public interest, health, safety, convenience, or welfare;”
(e) “compatible with existing and potential land uses in the general area where the development is to be located;”
(f) “on a legal lot; and”
(g) “approved in accordance with the California Environmental Quality Act and all other applicable laws.”
NCZO § 8111-1.2.1.1.
The permitting official must be satisfied that every condition has been or will be met. See id. Thus, if one condition confers an impermissible degree of discretion, the specificity of a separate condition will not save the scheme.
Criteria (f) and (g), located “on a legal lot” and “approved in accordance with [CEQA],” are objective. Conditions (a) through (e), however, echo those that we previously have concluded do not provide sufficient guidance to permitting officials. Unlike G.K. Ltd. Travel, these standards are not defined elsewhere by a limited and objective set of criteria. In particular, conditions (c) and (d) mirror the requirements we struck down in Moreno Valley that a proposed use not “have a harmful effect upon the health or welfare of the general public” or be “detrimental to the welfare of the general public . . . [or] to the aesthetic quality of the community or the surrounding land uses.” 103 F.3d at 818. In that case, we were particularly concerned about the combination of abstract language, and the lack of a requirement that permitting officials support their decision with objective evidence. Id. at 819.
The County argues that other provisions of the NCZO provide additional specific factors for permitting officials to
The amended CUP scheme, however, differs from the scheme at issue in Moreno Valley in that it requires the permitting official to make “specific factual findings” to support an adverse decision.
We have explained that “requiring officials to state the reasons for a license denial provides an important check on official discretion by ‘facilitat[ing] effective review of the official‘s determination’ and ‘ensur[ing] that the determination . . . is properly limited in scope.‘” Seattle Affiliate of Oct. 22nd Coal. to Stop Police Brutality, Repression and Criminalization of a Generation v. City of Seattle, 550 F.3d 788, 801 (9th Cir. 2008) (alterations in original) (quoting G.K. Ltd. Travel, 436 F.3d at 1083). The amended CUP scheme requires specific factual findings in support of a permit denial. However, it is unclear whether the amendment requires the Commission to provide greater specificity than before.
On the one hand, at the public hearing in support of the amendment to the CUP scheme, the County stated that the amendments “do not make any substantive changes to the findings of approval for these permits,” and specifically in regard to the newly explicit need for findings in support of a
Neither the provision of specific guidelines nor a requirement of specific factual findings is “necessarily determinative of whether a statute confers excess discretion.” Id. at 798–99. Rather, we look to the totality of the factors to assess whether an ordinance “contains
2. The CUP scheme lacks a time limit
In Freedman v. Maryland, 380 U.S. 51 (1965), the Supreme Court set forth procedural safeguards required to render a prior restraint on speech constitutional. Id. at 58–59. Among these procedural requirements is a guarantee that the licensor “will, within a specified brief period, either issue a license or go to court,” id. at 59, because “[w]here the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion,” FW/PBS, 493 U.S. at 227; see Real, 852 F.3d at 935.
While the Freedman safeguards are not required for content-neutral time, place, and manner permit schemes, see Thomas v. Chi. Park Dist., 534 U.S. 316, 322–23 (2002), a permitting scheme is not “content neutral” if it vests unbridled discretion in a permitting official, see Kaahumanu, 682 F.3d at 806 (adopting the view that “the viewpoint neutrality requirement includes the prohibition on a licensing authority‘s unbridled discretion“); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (noting that unbridled discretion raises specter of viewpoint discrimination); City of Lakewood, 486 U.S. at 763–64 (same). Because the CUP scheme lacks adequate standards for official decision making and specifically targets weddings, it necessarily also requires the time limitation contemplated by Freedman. Cf. Real, 852 F.3d at 935 (concluding a tattoo artist raised a cognizable prior restraint claim where the ordinance vested excessive discretion with the permitting city and lacked time limits to grant or deny a CUP); Seattle Affiliate, 550 F.3d at 798 (noting the Supreme Court‘s concern about statutes that do not contain mechanisms for review of decisions).
The NCZO does not itself identify any specified time period within which a permitting decision must be made. Citing Citizens for Free Speech, LLC v. County of Alameda, 114 F. Supp. 3d 952, 965–66 (N.D. Cal. 2015), the County argues that the California Permit Streamlining Act (CPSA) provides a time limit that cabins official discretion. We disagree. The CPSA only applies to “development projects” as defined in
The NCZO‘s failure to provide any limitation on the time period within which a permit must be approved further compounds the problem created by the lack of definite standards for permitting officials. See, e.g., FW/PBS, 493 U.S. at 226–27. Together, these defects confer
III. RLUIPA Equal Treatment Claim
To bring an equal treatment claim under RLUIPA, “(1) there must be an imposition or implementation of a land-use regulation, (2) by a government, (3) on a religious assembly or institution,” and (4) the regulation must treat the religious assembly or institution “on less than equal terms with a nonreligious assembly or institution.” Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1170–71 (9th Cir. 2011); see
In Centro Familiar, when discussing the plaintiff‘s equal terms claim, we held that “the government, not the religious institution,” bears the burden of persuasion “once the religious institution establishes a prima facie case.” Centro Familiar, 651 F.3d at 1171. This repeated reference to “religious institution” indicates that a plaintiff must be a religious assembly or institution to bring an equal terms claim, and we so hold. Consistent with this holding, the Third, Fifth, and Eleventh Circuits also require that a RLUIPA plaintiff be a religious assembly or institution in order to bring an unequal treatment claim. See Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 290 (5th Cir. 2012) (finding appellant was a religious assembly or institution); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 270 (3d Cir. 2007); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1307–08 (11th Cir. 2006); see also Tree of Life Christian Schs. v. City of Upper Arlington, 823 F.3d 365, 377–78 (6th Cir. 2016) (White, J., concurring in part and dissenting in part) (citing Primera Iglesia, 450 F.3d at 1307).
Appellants advance two more arguments regarding their equal terms claim. First, they contend that they may bring an equal terms claim because the use of their property for weddings falls within RLUIPA‘s definition of religious exercise. However, the cases cited by Appellants all involve a substantial burden claim, of which religious exercise is an element. See, e.g., Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 347–48 (2d Cir. 2007); see also
IV. Preliminary Injunction
After the district court dismissed all of Appellants’ claims, it denied Appellants’ motion for a preliminary injunction as moot. The district court never considered whether Appellants had demonstrated a likelihood of success or irreparable harm, nor whether the balance of equities and public interest favor injunctive relief. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
Because we reverse the district court‘s dismissal of Appellants’ First Amendment claim, Appellants’ motion for a preliminary injunction is no longer moot. Therefore, we vacate the district court‘s denial of the motion on that ground. But, because “[a] preliminary injunction is an extraordinary remedy never awarded as of right,” Winter, 555 U.S. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)), and “[t]he grant of a preliminary injunction is a matter committed to the discretion of the trial judge,” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984), we remand this case to the district court for consideration of all the Winter factors in the first instance. See Evans v. Shoshone-Bannock Land Use Policy Comm‘n, 736 F.3d 1298, 1307 (9th Cir. 2013).
CONCLUSION
For the foregoing reasons, we reverse the district court‘s dismissal of Appellants’ First Amendment claim, affirm the district court‘s dismissal of Appellants’ RLUIPA equal treatment claim, vacate the denial of Appellants’ motion for a preliminary injunction, and remand to the district court for consideration of the motion for a preliminary injunction.
Each party shall bear its own costs on appeal. See
REVERSED IN PART, AFFIRMED IN PART, VACATED IN PART, REMANDED.