The Lighthouse Institute for Envangelism, Inc., etc. v. City of Long Branch, etc.

This appeal requires us to clarify the nature of the
constitutional and statutory protections enjoyed by religious
assemblies against governmental interference in the form of
land-use regulations. The plaintiff/appellants are the Lighthouse
Institute for Evangelism, which describes itself as "a Christian
church that seeks to minister to the poor and disadvantaged in
downtown Long Branch, New Jersey," and its pastor, the Reverend Kevin Brown.1 The City of Long Branch is the
defendant.

The case reaches us on appeal from the grant of summary
judgment to Long Branch on Lighthouse's facial challenge to
two Long Branch zoning ordinances which prevented
Lighthouse from locating in a certain area of downtown Long
Branch. Lighthouse challenged the ordinances under the Free
Exercise Clause of the First Amendment and the Equal Terms
provision of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. § 2000cc(b)(1).2

The primary question on this appeal is whether a
municipality may exclude religious assemblies or institutions
from a particular zone, where some secular assemblies or
institutions are allowed, without violating the Free Exercise
Clause of the First Amendment or RLUIPA's Equal Terms
Provision.

For the reasons explained below, we will affirm in part
and vacate in part the District Court's decision on the crossmotions for summary judgment and we will remand this case to
the District Court for further proceedings consistent with this
opinion.

I. Factual and Procedural Background

A. The Initial Dispute

Lighthouse began renting space at 159 Broadway in
downtown Long Branch in 1992. At the end of 1994,
Lighthouse purchased nearby property at 162 Broadway (the
Property). The Property was then located within the C-1 Central
Commercial District, which was subject to City of Long Branch
Ordinance 20-6.13 (the Ordinance). The Ordinance enumerated
a number of permitted uses, including among others: restaurant;
variety store and other retail store; educational service and
college; "Assembly hall, bowling alley, and motion picture
theater;" governmental service; municipal building; and new
automobile and boat showrooms. A church was not listed as a
permitted use.

Between 1995 and 2000, Lighthouse attempted to obtain
permission from Long Branch to employ the Property for a
number of uses, including as a soup kitchen, a job skills training
program, and a residence for Rev. Brown, but the use was
denied in each case because the application was incomplete or because the requested use was not permitted.3 Lighthouse was
allowed, however, to use the Property as an office.

On April 26, 2000, Lighthouse submitted an application
for a zoning permit to use the Property as a church. Long
Branch denied the application because the "proposed use [was]
not a permitted use in the Zone" and "would require prior
approvals from the Zoning Board of Adjustment." Lighthouse
did not seek a variance or appeal the decision.

B. First Round of Litigation

On June 8, 2000, Lighthouse filed suit in state court
against Long Branch and other defendants, alleging a variety of
constitutional and other violations. Long Branch removed the
case to federal court. In September 2000, Congress enacted the
Religious Land Use and Institutionalized Persons Act
(RLUIPA). Lighthouse promptly amended its complaint to add
claims under sections 2(a) and 2(b) of RLUIPA (42 U.S.C. §§
2000cc(a) and (b)(1) – the "Substantial Burdens" and "Equal
Terms" sections), claiming that the Ordinance violated RLUIPA
both on its face and as applied.4 Lighthouse requested injunctive relief as well as damages of eleven million dollars for
Lighthouse and $7,777,777 for Rev. Brown.

The District Court dismissed as either unexhausted or
unripe all the claims attacking the Ordinance as applied and
denied Lighthouse's motion for a preliminary injunction.
Lighthouse appealed the denial of the preliminary injunction.
We affirmed in a nonprecedential opinion. Lighthouse Inst. for
Evangelism Inc. v. Long Branch, 100 Fed. Appx. 70 (3d Cir.
2004) ("Lighthouse I"). We reasoned that the record did not
show that the Ordinance on its face barred the use of the
property as a church; in particular, it was not clear to us that
Lighthouse would not gain approval of its intended use by
applying as an "assembly hall." Id. at 74-75. We noted also
that Lighthouse had not proferred evidence that the Ordinance
was not a neutral law of general applicability. Thus, under the
rule of Employment Div., Dep't of Human Res. v. Smith, 494
U.S. 872, 879 (1990), it could not be defeated by a Free
Exercise claim alone. For that reason, we concluded that
Lighthouse did not have a reasonable probability of success on
the merits of its claim that the Ordinance on its face violated the
Free Exercise clause. Lighthouse I, 100 Fed. Appx. at 75-76.
As to the RLUIPA "equal terms" claim, we noted again that it
was not clear that the use of the Property as a church would not
be approved under the "assembly hall" language. We also
concluded that Lighthouse had "failed to provide evidence to
support its contention that the secular assemblies it identified
were actually similarly situated such that a meaningful comparison could be made under this provision." Id. at 77.

C. The Redevelopment Plan

While the litigation on the Ordinance made its way
through the courts, the applicable zoning ordinance was
changed. On October 22, 2002, Long Branch adopted a
Redevelopment Plan under N.J.S.A. 40A:12A-7 that strictly
limited the use of properties within the "Broadway Corridor"
area.5 The Property was located in this area. The Broadway Redevelopment Plan (the Plan) superseded the Ordinance as the
land use regulation applicable to the Property.

Long Branch adopted the Plan "in order to achieve
redevelopment of an underdeveloped and underutilized segment
of the City." The goals of the redevelopment included
"[s]trengthen[ing] retail trade and City revenues,"
"[i]ncreas[ing] employment opportunities," and "[a]ttract[ing]
more retail and service enterprises." The Property is located in
the "Broadway Corridor" of the redevelopment area, a
"Regional Entertainment / Commercial" sector where the City
aimed to encourage a "vibrant" and "vital" downtown
residential community centered on a core "sustainable retail
‘main' street." Primary uses in that sector included theaters,
cinemas, culinary schools, dance studios, music instruction,
theater workshops, fashion design schools, and art studios and
workshops. Restaurants, bars and clubs, and specialty retail
(including book and craft stores), among others, were allowed
as secondary uses. Churches were not listed as a permitted use,
nor were schools or government buildings; the Design
Guidelines under the Plan provided that "[a]ny uses not
specifically listed" were prohibited.

The Plan also created new application requirements for
development within the relevant area. The first step in the
process, the RFQ (Request for Qualifications), required
applicants to describe the development team members' expertise
and qualifications. The second step, the RFP (Request for
Proposal), required a detailed description of the project. No
property could be developed in the Redevelopment Area until
the plans had been approved by the City Council. The Plan
provided that the approved developers would acquire the
necessary properties from their owners, but reserved the right
for Long Branch to condemn properties if negotiations failed.

The Plan did not include an individual waiver procedure,
but the Plan could be amended by ordinance of the City Council
after review of the proposed amendment by the Planning Board

On November 11, 2003, Lighthouse, as the "Long Branch
Center of Faith," submitted an RFQ seeking to be designated as
developer for the Property. The application, about one page
long, also requested a "waiver of prohibition of church use." It
specified that Rev. Brown sought "to use the property as a
church and for church related functions, including assembly for
prayer, pastoral residence, church offices, and a religious gift
shop from the storefront portion in front of the property." The
RFQ was not approved.

Lighthouse appealed to the Long Branch City Council.
The City Council held an evidentiary hearing, at which Rev.
Brown and two Long Branch planners presented testimony. The
City Council denied the appeal, first, because the proposed use
was "not permitted in the zone," and, second, because the
application was insufficient since it contained no information as
to finances, scope of the project, size of the congregation,
aesthetics or design. The City Council also denied the request
for amendment of the Plan because the "inclusion of a storefront
church would jeopardize" the development of the Broadway
area, which was envisioned as "an entertainment / commercial
zone with businesses that are for profit."6 The City Council
found that a church would "destroy the ability of the block to be
used as a high end entertainment and recreation area" due to a
New Jersey statute which prohibits the issuance of liquor
licenses within two hundred feet of a house of worship.7

D. Subsequent Litigation

After we remanded Lighthouse I (affirming the denial of
preliminary injunction), Lighthouse filed an amended complaint,
claiming that the Plan violated the Free Exercise Clause and
RLUIPA. Lighthouse Inst. for Evangelism v. Long Branch, 406
F. Supp. 2d 507 (D.N.J. 2005) (Lighthouse II). The parties filed
cross-motions for summary judgment. The District Court
granted Long Branch's motion for summary judgment on all claims and denied Lighthouse's cross-motion for partial
summary judgment. Id. at 510.8

The District Court held that neither the Ordinance nor the
Plan violated RLUIPA's Equal Terms provision, 42 U.S.C. §
2000cc(b)(1). The court concluded that in order to prevail on a
claim based on this provision, a religious assembly or institution
must show that it is being treated worse than a similarly situated
secular assembly or institution; in this case, Lighthouse had not
shown this (1) because, as a church, it had a different effect on
the availability of liquor licenses than did secular assemblies and
(2) because there was no secular comparator planning a similar
combination of uses (church assembly, residence, store, Bible
school, etc.). The court then determined that, even if Lighthouse
were similarly situated to a secular assembly that was treated
better by Long Branch's land use laws, the Ordinance and the
Plan survived strict scrutiny, as Long Branch had a compelling
interest in promoting the economic development of the
downtown; a church, with the attendant alcohol restrictions,
would thwart that goal. The court further concluded that the
"substantial burden" requirement of section 2(a)(1) of RLUIPA
also applied to the section 2(b)(1) Equal Terms provision and
that Lighthouse could not demonstrate that Long Branch's
actions imposed a substantial burden on Lighthouse's exercise
of religion. Lighthouse II, 406 F. Supp. 2d at 516-19.

As for the Free Exercise Clause, the District Court held
that neither the Ordinance nor the Plan violated it because both
were neutral laws of general applicability. Id. at 519-20.

Lighthouse appealed the entry of summary judgment for
Long Branch and the denial of its motion for partial summary
judgment with respect only to its Free Exercise and RLUIPA
Equal Terms claims.9

The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343(a)(3), 1367, and 1441, and 42 U.S.C. §§ 1983, 3612,
and 2000cc-2. We have jurisdiction of the appeal under 28
U.S.C. § 1291.

We review a district court's grant of summary judgment
de novo. Gottshall v. Consol. Rail Corp., 56 F.3d 530, 533 (3d
Cir.1995). Summary judgment is only appropriate if there are
no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
reviewing the District Court's grant of summary judgment, we
view the facts in a light most favorable to the nonmoving party.
Id. at 533.

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http://www.ca3.uscourts.gov/opinarch/061319p.pdf