# Sumana Forest Retreat v. County of San Diego, California

> District Court, S.D. California · February 24, 2025

URL: https://www.frixlaw.com/law-library/cases/10805471

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 SUMANA FOREST RETREAT, et al., Case No.: 24-cv-1196-RSH-DDL

12 Plaintiffs,
ORDER ON DEFENDANT’S
13 v. MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED
14 COUNTY OF SAN DIEGO,
COMPLAINT
15 Defendant.
[ECF No. 16]
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19 Before the Court is the County of San Diego’s (“the County’s”) motion to dismiss
20 Plaintiffs’ First Amended Complaint (ECF No. 15, “FAC”). ECF No. 16. Pursuant to Local
21 Civil Rule 7.1(d)(1), the Court finds the motion presented appropriate for resolution
22 without oral argument. For the reasons below, the Court grants in part and denies in part
23 the motion.
24 I. BACKGROUND
25 A. Plaintiffs’ Allegations
26 The instant case arises from the County’s permitting and code enforcement actions
27 taken in relation to property Plaintiffs intended for religious use. The FAC alleges as
28 follows.
1 1. The Valley Center Property
2 Plaintiff William Chu is a professor of Buddhist studies and an ordained Buddhist
3 minister. FAC ¶¶ 8–9. Plaintiff Sumana Forest Retreat (“SFR”) is a nonprofit Buddhist
4 religious organization. Id. ¶ 11. SFR practices and teaches Forest Tradition Theravada
5 Buddhism, a faith centered on the exercise of meditation in secluded, remote forest settings.
6 Id. ¶¶ 18–19. Chu is the leader of SFR. Id. ¶ 9.
7 In 2018, Chu purchased a 9.9-acre property located at 11923 Via Campestre, Valley
8 Center, California (the “Valley Center Property”). Id. ¶ 13. Shortly after purchase,
9 Plaintiffs began to prepare the property to host meditative retreats. Id. ¶ 25. To that end,
10 between 2018 and 2019, Plaintiffs built ten yurts to serve as places for retreatants to
11 meditate and rest. Id. ¶¶ 28, 57.1
12 2. Major and Minor Use Permits
13 The Valley Center Property is located in the A70 Zoning District of San Diego
14 County—a Limited Agricultural Use District. Id. ¶ 32. Land use permits are required to
15 use property within the A70 District in certain ways. FAC ¶¶ 36, 46; ECF No. 15-4. Of
16 relevance to the dispute, under the County’s zoning ordinance, property owners are
17 required to obtain a Minor Use Permit for “small schools, farm labor camps, and cottage
18 industries.” FAC ¶ 36; ECF No. 15-4 at 3. In contrast, property owners must obtain a Major
19 Use Permit to use land for, among other purposes, “religious assembly.” FAC ¶¶ 46, 133;
20 ECF No. 15-4 at 4. Major Use Permit applications require approval by the County Board
21 of Supervisors or Planning Commission. FAC ¶ 52; ECF No. 15-6 at 2. In contrast, Minor
22 Use Permits may be approved by the Director of Planning & Development Services. FAC
23 ¶ 53; ECF No. 15-6 at 2. Applying for a Major Use Permit may also require additional
24 costs. FAC Id. ¶ 54.
25

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27 1 The County disagrees that the structures are properly described as “yurts,” arguing
that that term indicates a simple cloth structure but that the structures at issue have kitchens,
28
1 3. Permit Pre-Application
2 In 2018, Chu began the process of applying for a land use permit. FAC ¶ 55. In
3 January 2021, Chu submitted a Major Use pre-application. FAC ¶ 62; ECF No. 15-17 at 2.
4 Plaintiffs did not hear anything from the County regarding their pre-application in the
5 following two years. FAC ¶ 64. Nevertheless, during the same time period, in May 2021,
6 January 2022, and January 2023, Brandy Contreras, a Land Use/Environmental Planner in
7 the County’s Code Compliance Division, randomly conducted inspections of the Valley
8 Center Property. Id. ¶ 65.
9 Chu and other SFR members eventually met with County officials to discuss
10 Plaintiffs’ application. Id. ¶ 67. The FAC alleges that over the course of two meetings,
11 County Officials informed Chu and other SFR members that the County would never
12 approve Plaintiffs’ application because of the yurts erected on the Valley Center Property,
13 despite not having objected previously. Id. ¶¶ 68–69.
14 4. Plaintiffs Retain Counsel
15 Plaintiffs subsequently sought and retained counsel. FAC ¶ 76; ECF No. 15-3. In a
16 July 6, 2023 letter, Plaintiffs’ counsel advised the County that the zoning ordinance placed
17 a substantial burden on Plaintiffs’ religious exercise by requiring them to obtain a Major
18 Use Permit. ECF No. 15-3 at 6. The letter set forth Plaintiffs’ intent to bring a federal
19 lawsuit if the Parties were “unable to come to an agreement on a Minor Use Permit.” Id. at
20 2.
21 On October 16, 2023, the County responded that the Valley Center Property’s “yurts
22 in their current condition present serious concerns related to fire safety, structural integrity,
23 and environmental hazards.” ECF No. 15-14 at 2. The County’s response further stated:
24 The future use of the property will need to match the permit for which
25 Dr. Chu and the Sumana Forest Refuge apply. If the planned use is
fewer than 50 people meditating and exploring Buddhism, without
26 taking up residence in the yurts, the County would consider a minor use
27 permit, as it would for the arguably analogous use case of a small
school. However, if transient habitation is to be a use, whether primary
28 or accessory, a major use permit is required to ensure the resulting
1 health, safety, and environmental concerns are adequately examined.
2 Id. at 2. Finally, the County cautioned Plaintiffs that “[r]egardless of the permit ultimately
3 applied for and obtained,” the Valley Center Property yurts had to “be brought into
4 conformance with the building code.” Id. Although the letter recognized that this could be
5 “impractical with the existing yurts,” it noted the County’s willingness to “explore options”
6 with Chu and SFR as to how to do so. Id. at 2–3.
7 On December 1, 2023, Plaintiffs’ counsel responded that Plaintiffs’ planned use of
8 the property would be for less than 50 persons, and reasserted their position Plaintiffs
9 should be permitted to apply for a Minor Use Permit and maintain yurts on their property
10 ECF No. 15-15 at 2–3.
11 5. Application for Initial Consultation
12 Thereafter, Plaintiffs filed an application for a meeting with the County, known as
13 an initial consultation. ECF No. 15-17 at 2. In a letter dated May 28, 2024, the County
14 informed Plaintiffs it had reviewed Plaintiffs’ initial consultation application. ECF No. 15-
15 16 at 2. Based on the project description submitted with Plaintiffs’ application, the
16 County’s Planning & Development Services Department concluded that Plaintiffs’ project
17 required a Major Use Permit. Id. at 3. The letter indicated that Plaintiffs could seek a second
18 opinion from the County’s Chief of Project Planning and Chief of Land Development. Id.
19 at 4.
20 6. Termination of Power
21 In early 2024, plaintiff Chu consented to have Ms. Contreras and other County
22 officials inspect the Valley Center Property. FAC ¶ 82. Thereafter, on March 31, 2024, he
23 received a Notice from the County’s Department of Environmental Health and Quality
24 Division indicating that graywater was “being illegally discharged onto the ground” at the
25 property. FAC ¶ 87; ECF No. 15-17 at 2. The Notice stated that at the time of the inspection,
26 officials observed ten yurts and several “accessory structures.” Id. Most of the yurts had
27 “electrical, gas plumbing, and water plumbing.” Id. Wastewater discharge pipes “were
28 observed from all plumbed yurts” and portable restrooms “were also observed on
1 property,” despite there being “no approved means of wastewater treatment/disposal on the
2 property.” Id.
3 On June 7, 2024, San Diego Gas & Electric (“SDG&E”) terminated power to the
4 Valley Center Property. FAC ¶ 91. In a letter received by Chu several days later, SDG&E
5 informed Chu it had received notification from the County that the “electrical and gas
6 services” at the Valley Center Property presented “an immediate hazard to life and
7 property” and that SDG&E could not reconnect power until authorized in writing to do so
8 by the County. FAC ¶ 95; ECF No. 15-19 at 2. As of the date of the FAC, SDG&E had not
9 reconnected power to the property. FAC ¶ 106.
10 B. Procedural Background
11 On July 11, 2024, Plaintiffs filed the instant action against the County. ECF No. 1.
12 On July 12, 2024, Plaintiffs filed a motion for a temporary restraining order and
13 preliminary injunction. ECF No. 4. The Court held a hearing on Plaintiffs’ motion on July
14 18, 2024, and denied it without prejudice. ECF No. 8.
15 On September 9, 2024, Plaintiffs filed their FAC, the operative pleading in this case.
16 ECF No. 15. The FAC asserts: (1) a Religious Land Use and Institutionalized Persons Act
17 (“RLUIPA”) substantial burden claim; (2) a RLUIPA equal terms claim; (3) a RLUIPA
18 nondiscrimination claim; (4) a claim for violation of the First Amendment’s right to free
19 exercise of religion; (5) a claim for violation of the First Amendment’s right to free speech
20 and assembly; (6) a claim for violation of due process under the First and Fourteenth
21 Amendments; and (7) a claim for violation of free exercise and freedom of association
22 under the California Constitution. FAC ¶¶ 111–186.
23 On September 30, 2024, the County filed the instant motion to dismiss. ECF No. 16.
24 Plaintiff filed an opposition, and the County filed a reply. ECF Nos. 19, 20.
25 II. LEGAL STANDARD
26 A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a claim.”
27 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a
28 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
1 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
2 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he non-conclusory ‘factual content,’
3 and reasonable inferences from that content, must be plausibly suggestive of a claim
4 entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
5 The plausibility review is a “context-specific task that requires the reviewing court to draw
6 on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Pleading facts
7 “‘merely consistent with’ a defendant’s liability” falls short of a plausible entitlement to
8 relief. Id. at 678 (quoting Twombly, 550 U.S. at 557). “[W]here the well-pleaded facts do
9 not permit the court to infer more than the mere possibility of misconduct, the complaint
10 has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal
11 quotation marks omitted). A court “accept[s] factual allegations in the complaint as true
12 and construe[s] the pleadings in the light most favorable to the nonmoving party.”
13 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the
14 other hand, a court is “not bound to accept as true a legal conclusion couched as a factual
15 allegation.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
16 III. ANALYSIS
17 A. RLUIPLA (Claims 1-3)
18 Plaintiffs’ RLUIPA claims are based on two general categories of County actions:
19 (1) the County’s handling of Plaintiffs’ pre-application for a land use permit; and (2) the
20 County’s enforcement of its building codes to cut electricity and gas to the Valley Center
21 Property. FAC ¶¶ 111–145. The County moves to dismiss each of Plaintiffs’ RLUIPA
22 claims on various grounds, including failure to state a claim, standing, and lack of ripeness.
23 ECF No. 16 at 11–19. The Court addresses these arguments below.
24 1. Generally
25 RLUIPA was enacted “to protect the free exercise of religion guaranteed by the First
26 Amendment from governmental regulation.” Guru Nanak Sikh Soc’y v. Cty. of Sutter, 456
27 F.3d 978, 985 (9th Cir. 2006). It contains several provisions limiting government regulation
28 of land use. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163,
1 1169 (9th Cir. 2011). Three of these provisions are at issue here. The first—the “substantial
2 burden” provision—“prohibits governments from implementing land use regulations that
3 impose ‘a substantial burden’ on religious exercise unless the government demonstrates
4 that they further a ‘compelling governmental interest’ by the ‘least restrictive means.’” Id.
5 at 1169 (quoting 42 U.S.C. § 2000cc(a)(1)). The second—the “equal terms” provision—
6 “prohibits a government from imposing a land use restriction on a religious assembly ‘on
7 less than equal terms’ with a nonreligious assembly.” Id. (quoting 42 U.S.C.S. §
8 2000cc(b)(1)). Finally, the third—the “nondiscrimination” provision—states that “[n]o
9 government shall impose or implement a land use regulation that discriminates against any
10 assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. §
11 2000cc(b)(2).
12 2. Standing
13 The County argues plaintiff SFR lacks standing to sue under RLUIPA, because the
14 FAC does not allege that SFR possesses a property interest in the Valley Center Property.
15 ECF No. 16 at 12. Plaintiffs respond that SFR has standing to bring this lawsuit because
16 Chu purchased the property and is the leader of SFR. ECF No. 19 at 16–17.
17 Under RLUIPA, a claimant must have an “ownership, leasehold, easement,
18 servitude, or other property interest in the regulated land or a contract or option to acquire
19 such an interest.” 42 U.S.C.S. § 2000cc-5(5). Here, the FAC alleges only that plaintiff Chu
20 purchased the Valley Center Property. FAC ¶ 13. There is no indication that plaintiff SFR
21 has an “ownership, leasehold, easement, servitude, or other property interest.” Plaintiffs’
22 alternative contention that SFR has a cognizable property interest in the Valley Center
23 Property through Chu lacks support. See, e.g., Congregation Etz Chaim v. City of Los
24 Angeles, No. CV 10-1587 CAS CFEX, 2012 WL 11826032, at *3 (C.D. Cal. Apr. 17, 2012)
25 (dismissing RLUIPA claims brought by individual members of congregation where there
26 was no allegation any individual member held an interest in the subject property). For these
27 reasons, the Court concludes SFR lacks standing to assert RLUIPA claims.
28 ///
1 3. Building Codes
2 The County next argues that Plaintiffs’ RLUIPA claims should be dismissed to the
3 extent they are based on the County’s enforcement of its building codes, because such
4 codes are not “land use regulations” under RLUIPA. ECF No. 16 at 11–12.
5 Under RLUIPA, a “land use regulation” is “a zoning or landmarking law, or the
6 application of such a law, that limits or restricts a claimant’s use or development of land
7 (including a structure affixed to land)[.]” 42 U.S.C.S. § 2000cc-5(5); see Prater v. City of
8 Burnside, 289 F.3d 417, 434 (6th Cir. 2002) (“[A] government agency implements a ‘land
9 use regulation’ only when it acts pursuant to a ‘zoning or landmarking law’ that limits the
10 manner in which a claimant may develop or use property in which the claimant has an
11 interest.”). Multiple courts in the Ninth Circuit have held that “[s]afety laws such as
12 building or construction code provisions do not qualify as ‘land use regulations’ under
13 RLUIPA, at least where they do not explicitly reference zoning laws.” Temp. of 1001
14 Buddhas v. City of Fremont, 588 F. Supp. 3d 1010, 1027 (N.D. Cal. 2022); see Salman v.
15 Phoenix, City of, No. CV-12-01219-PHX-JAT, 2015 WL 5043437, at *4 (D. Ariz. Aug.
16 27, 2015) (code sections that regulate “construction, safety, and traffic” are not land use
17 regulations); Anselmo v. Cty. of Shasta, 873 F. Supp. 2d 1247, 1257 (E.D. Cal. 2012)
18 (building and construction code that prohibited construction without a permit and did not
19 reference zoning laws was not a “land use regulation.”).
20 Plaintiffs do not identify the specific code sections they claim the County enforced
21 against them. The June 7, 2025 letter from SDG&E to plaintiff Chu indicates that SDG&E
22 was instructed to cut power to the Valley Center Property because the provision of
23 electricity and gas to the property presented an “immediate hazard to life and property.”
24 ECF No. 15-19 at 2. The letter does not indicate which code sections were being enforced.
25 Id. Similarly, the FAC cites multiple sections of the County Construction and Fire Code
26 without identifying which sections Plaintiffs allege are “land use regulations” under
27 RLUIPA.
28 ///
1 The Court infers that Plaintiffs are challenging the County’s enforcement of County
2 Construction and Fire Code Section 91.1.112.3. Under Section 91.1.112.3, a “building
3 official may authorize disconnection of utility service to a building, structure or system
4 regulated by this chapter in case of emergency where the building official determines it is
5 necessary to eliminate an immediate hazard to life or property.” ECF No. 15-21 at 3.
6 Section 91.1.112.3 makes no reference to any zoning or landmarking laws. It simply allows
7 the County to disconnect utility services to a property if necessary to eliminate an
8 “immediate hazard to life or property.” Id. Plaintiffs have not adequately explained how
9 Section 91.1.112.3 falls within RLUIPA’s definition of a “land use regulation.” See
10 Salman, 2015 WL 5043437, at *4–5 (D. Ariz. Aug. 27, 2015) (dismissing RLUIPA claim
11 where complaint did not “specify which Code sections Plaintiffs challenge, and the few
12 allegations that give some information about the Code sections at issue indicate that they
13 are not ‘land use regulations’ governed by RLUIPA.”).
14 Plaintiffs argue that courts “throughout the country” have held building codes can
15 be the basis of a RLUIPA claim when the record supports an inference that a municipal
16 entity enforced such codes “disingenuously.” ECF No. 19 at 14–15. In support, Plaintiffs
17 cite only out-of-circuit cases and fail to adequately explain how these cases apply. Unlike
18 in those cases, Plaintiffs have not alleged sufficient facts to establish that the County
19 functionally utilized the Construction and Fire Code to make its zoning decisions or that
20 the County enforced these sections disingenuously. Indeed, the County’s October 16, 2023
21 response to Plaintiffs’ counsel specifically noted that the Valley Center Property’s yurts
22 would have to be brought into conformance with the building code regardless of whether
23 Plaintiffs ultimately applied for and obtained a Major Use or Minor Use Permit. See ECF
24 No. 15-14 at 2.
25 For these reasons, the Court concludes dismissal of Plaintiffs’ RLUIPA claims, to
26 the extent these claims are based on the County’s code enforcement actions, is warranted.
27 ///
28 ///
1 4. Zoning Ordinance
2 The Court next considers Plaintiffs’ claims that the County violated RLUIPA by
3 requiring Plaintiffs to obtain a Major Use rather than Minor Use Permit. The County
4 contends these claims must be dismissed because they are not ripe for adjudication. ECF
5 Nos. 16 at 13–14; 20 at 3–4. Specifically, the County argues Plaintiffs must first complete
6 the application process for either a Major Use or Minor Use Permit before asserting these
7 claims, citing the Ninth Circuit’s decision in Guatay Christian Fellowship v. Cty. of San
8 Diego, 670 F.3d 957 (9th Cir. 2011).
9 a. Final Decision Requirement
10 “Article III of the Constitution empowers [courts] to adjudicate only live cases or
11 controversies, not to issue advisory opinions [or] to declare rights in hypothetical cases.”
12 Clark v. City of Seattle, 899 F.3d 802, 808 (9th Cir. 2018) (internal quotation marks
13 omitted). “The basic rationale of the ripeness requirement is to prevent the courts, through
14 avoidance of premature adjudication, from entangling themselves in abstract
15 disagreements.” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 835
16 (9th Cir. 2012). “The ripeness inquiry has a constitutional component rooted in the ‘case
17 or controversy’ requirement of Article III, and a prudential component that focuses on
18 whether the record is adequate to ensure effective review.” City of Auburn v. Qwest Corp.,
19 260 F.3d 1160, 1171 (9th Cir. 2001).
20 In the land use context, the Court’s analysis of ripeness is guided by the Ninth
21 Circuit’s decision in Guatay. In Guatay, a church used property located in a “rural
22 residential” zone for religious assembly purposes, despite not having obtained the proper
23 land use permits. 670 F.3d at 959–60. Instead, the church and property owner twice
24 proceeded only partway through the permit application process. Id. at 962–64. Because the
25 church had never completed this process, the district court found its RLUIPA claims were
26 not ripe for review. Id. at 969. The Ninth Circuit affirmed. Id. at 979–82.
27 To determine whether the church’s RLUIPA claims were ripe, Guatay drew upon
28 the “final decision” requirement in the Supreme Court’s decision in Williamson County
1 Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985). Guatay, 670 F.3d
2 at 976–79. Williamson held, in the regulatory takings context, that “a claim that the
3 application of government regulations effects a taking of a property interest is not ripe until
4 the government entity charged with implementing the regulations has reached a final
5 decision regarding the application of the regulations to the property at issue.” 473 U.S. at
6 186. Applying Williamson’s “final decision” requirement, Guatay held the church’s
7 “failure to complete even one full Use Permit” left the court “unable to discern whether
8 there is a true case or controversy, and any resulting injury.” 670 F.3d at 980.
9 As Plaintiffs note, however, the Supreme Court recently readdressed the “final
10 decision” requirement in Pakdel v. City & County. of San Francisco, 594 U.S. 474 (2021).
11 In Pakdel, petitioners owned a multi-unit residential building organized as a tenancy-in-
12 common. 594 U.S. at 475. The City of San Francisco established a program by which such
13 tenants-in-common could convert their interests into condominium-style arrangements
14 allowing for individual ownership of certain parts of the building. Id. at 476. One of the
15 conditions of this conversion was that nonoccupant owners who rented out their units were
16 required to offer their renters a lifetime lease. Id. Petitioners obtained such a conversion,
17 but thereafter requested that the City either excuse them from executing the lifetime lease
18 or compensate them for doing so. Id. The City refused both requests, informing petitioners
19 that the failure to execute the lifetime lease could result in an enforcement action. Id.
20 The Ninth Circuit held petitioners’ claim was not ripe because petitioners did not
21 comply with the proper “administrative processes” in obtaining the City’s decision. Id. at
22 479. The Supreme Court reversed, holding that the “finality requirement is relatively
23 modest. All a plaintiff must show is that there [is] no question . . . about how the regulations
24 at issue apply to the particular land in question.” Id. at 478. For these reasons, Pakdel held
25 because the City had twice denied petitioners’ request to be excused and threatened an
26 enforcement action, there was “no question” about the City’s position. Id. at 478–79.
27 Pakdel further clarified that:
28
1 for a takings claim when the government has reached a conclusive
position. To be sure, we have indicated that a plaintiff’s failure to
2
properly pursue administrative procedures may render a claim
3 unripe if avenues still remain for the government to clarify or change
its decision. But, contrary to the Ninth Circuit’s view, administrative
4
missteps do not defeat ripeness once the government has adopted its
5 final position.
6 Id. at 480 (internal quotation marks and citations omitted).
7 b. Facial Versus As-Applied Challenges
8 Plaintiffs argue the final decision requirement does not bar Plaintiffs’ RLUIPA equal
9 terms claim, because Plaintiffs assert both a facial and as-applied equal terms challenge to
10 the County’s zoning ordinance. ECF No. 19 at 18–18; see FAC ¶¶ 131–39.2 The County
11 does not address this argument in their Reply. See ECF No. 20.
12 “The equal terms provision [of RLUIPA] contemplates both facial and as-applied
13 challenges.” New Harvest Christian Fellowship v. City of Salinas, 29 F.4th 596, 604 (9th
14 Cir. 2022). “It prohibits the government from imposing, i.e., enacting, a facially
15 discriminatory ordinance or implementing, i.e., enforcing[,] a facially neutral ordinance in
16 a discriminatory manner.” Id. It is well established that the requirement that a “claimant
17 must seek a final decision regarding the application of the regulation to the property at
18 issue for the government entity charged with its implementation—does not apply to facial
19 challenges[.]”). Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686 (9th Cir. 1993); see
20 Hacienda Valley Mobile Estates v. City of Morgan Hill, 353 F.3d 651, 655 (9th Cir. 2003)
21 (“Facial challenges are exempt from the first prong of the Williamson ripeness analysis
22 because a facial challenge by its nature does not involve a decision applying the statute or
23 regulation.”).
24 Accordingly, the Court concludes the final decision rule does not bar Mr. Chu’s
25 facial equal terms challenge under RLUIPA to the County’s zoning ordinance. See Divine
26

27
2 Plaintiffs’ FAC indicates they are only asserting a facial challenge in Claim 2—for
28
1 Grace Yoga Ashram Inc. v. Cnty. of Yavapai, No. CV-21-08221-PCT-DJH, 2022 WL
2 279577, at *4 (D. Ariz. Jan. 31, 2022) (“Because the alleged injury under RLUIPA’s equal
3 terms provision may be present upon a facial reading of the Ordinance, it would not matter
4 whether Plaintiff applied for the [conditional use permit.]”); Calvary Chapel Bible
5 Fellowship v. Cnty. of Riverside, No. EDCV16259PSGDTBX, 2017 WL 11631506, at *6
6 (C.D. Cal. Apr. 18, 2017) (“The final-decision rule does not present a barrier to
7 adjudicating [plaintiff’s] causes of action, all of which assert facial challenges to the
8 ordinance provisions in question.”).
9 c. Conclusive Determination
10 The Court next turns to Plaintiffs’ as-applied claims. Under Guatay and Pakdel, the
11 question before the Court is whether the County reached a “conclusive position” as to “how
12 the regulations at issue apply to the particular land in question.” Pakdel, 594 U.S. at 478,
13 480; see Gethsemani Baptist Church v. City of San Luis, No. CV-24-00534-PHX-GMS,
14 2024 WL 4870509, at *5 (D. Ariz. Nov. 22, 2024) (“[T]he question for this Court in
15 determining whether Plaintiffs’ claim is ripe is whether there is any uncertainty about how
16 the City Code applies” to the property in question); Athey Creek Christian Fellowship v.
17 Clackamas Cnty., No. 3:22-CV-01717-YY, 2024 WL 3596969, at *9 (D. Or. July 30, 2024)
18 (“Guatay Christian remains controlling law to the extent that it requires a plaintiff asserting
19 [a] RLUIPA claim to show that there has been a final decision, though only de facto finality
20 is required in that a plaintiff must show there is no question as to how the regulations apply
21 to its property.”); see also Catholic Healthcare Int’l, Inc. v. Genoa Charter Twp., 82 F.4th
22 442, 448 (6th Cir. 2023) (“[I]n land-use cases, the necessary event is simply that the
23 government has adopted a definitive position as to how the regulations at issue apply to the
24 particular land in question.”) (internal quotation marks omitted).
25 The County argues it could not yet have “clearly taken” a position on whether the
26 Plaintiffs’ proposed usage of the Valley Center Property would require a Major Use or
27 Minor Use Permit as Plaintiffs failed to submit a complete application. ECF No. 20 at 9.
28 The Court agrees. Based on Plaintiffs’ FAC and accompanying exhibits, it does not appear
1 Plaintiffs ever filled a complete application for a land use permit or that the County had the
2 opportunity to fully consider Plaintiffs’ proposal to determine whether their request for a
3 Minor Use Permit would be feasible. See Ralston v. Cnty. of San Mateo, No. 21-CV-01880-
4 EMC, 2021 WL 3810269, at *7 (N.D. Cal. Aug. 26, 2021), aff’d, No. 21-16489, 2022 WL
5 16570800 (9th Cir. Nov. 1, 2022) (“Plaintiffs do not cite a single analogous case where a
6 court concluded that a state agency reached a ‘final decision’ before the landowner even
7 applied for a permit or submitted a substantive proposal to develop the property.”).
8 Plaintiffs argue the County has already taken a “final position” on Plaintiffs’ permit
9 application, citing the County’s review of materials submitted in connection with
10 Plaintiffs’ “pre-application.” ECF No. 19 at 19. The Court disagrees. Under Pakdel, “a
11 plaintiff’s failure to properly pursue administrative procedures may render a claim
12 unripe if avenues still remain for the government to clarify or change its decision.” 594
13 U.S. at 480. The County’s October 16, 2023 response to Plaintiffs’ counsel provided that
14 if plaintiff Chu’s “planned use” of the Valley Center Property was for fewer that fifty
15 people and no individuals would be “taking up residence in the yurts,” the County would
16 “consider” a Minor Use Permit. ECF No. 15-14 at 2. The County’s letter dated May 28,
17 2024, stated that Plaintiffs could request a second opinion from the County’s Chief of
18 Project Planning and Chief of Land Development regarding the County’s initial
19 determination that the Plaintiffs’ project would require a Major Use Permit. ECF No. 15-
20 16 at 4. These preliminary statements do not constitute a “final determination.” See Lustig
21 v. City of Laguna Beach, No. 8:22-CV-01945-DOC-ADS, 2023 WL 6370231, at *5 (C.D.
22 Cal. Aug. 10, 2023) (letter stating project “would appear to be . . . infeasible” was only “a
23 preliminary review” and not a final determination); Ralston, 2021 WL 3810269, at *6
24 (preliminary statements by County’s planning director did not constitute a “final
25 decision”). Plaintiffs have not sufficiently demonstrated why the County may not clarify
26 or even change its position.
27 ///
28 ///
1 Here, as in Guatay, Plaintiffs have “presented no evidence that the County will not
2 or cannot issue a Use Permit once it has received a complete application, and once
3 [Plaintiffs have] complied with what is required of all applicants.” Guatay, 670 F.3d at
4 981–82; see Little Woods Mobile Villa LLC v. City of Petaluma, 736 F. Supp. 3d 757, 766
5 (N.D. Cal. 2024) (“After Pakdel, the finality requirement is modest, but it is still a finality
6 requirement: where there has been no decision at all from the government and no effort to
7 seek one, Plaintiffs’ claims cannot be ripe.”) (internal quotation marks omitted); DiVittorio
8 v. Cnty. of Santa Clara, No. 21-CV-03501-BLF, 2022 WL 409699, at *7 (N.D. Cal. Feb.
9 10, 2022) (finding that regulatory takings claim was not ripe where plaintiffs “elected to
10 sue in the middle of the administrative process when avenues still remain for the
11 government to render a decision favorable to them”) (internal quotation marks omitted).
12 For these reasons, the Court concludes dismissal of Plaintiffs’ RLUIPA claims is
13 warranted, to the extent those claims are as-applied challenges to the County’s application
14 of its ordinances governing Major Use and Minor Use permits to the Valley Center
15 Property.
16 d. Plausibility of Plaintiffs’ Facial Challenge
17 Finally, the Court considers whether Plaintiffs have demonstrated a prima facie case
18 of facially unequal treatment in violation of RLUIPA. “To make out a prima facie case of
19 facially unequal treatment” under RLUIPA, a plaintiff “must show that the [challenged
20 ordinance] draws an ‘express distinction’ between religious assemblies and nonreligious
21 assemblies.” New Harvest Christian Fellowship v. City of Salinas, 29 F.4th 596, 605 (9th
22 Cir. 2022). A defendant “violates the equal terms provision only when a [plaintiff] is
23 treated on a less than equal basis with a secular comparator, similarly situated with respect
24 to an accepted zoning criteria.” Centro Familiar, 651 F.3d at 1173.
25 Here, Plaintiffs have plausibly alleged the County’s zoning provision facially
26 violates the equal terms provision because it permits nonreligious institutions, such as small
27 schools and cottage industries, to operate with a Minor Use Permit, while forbidding
28 religious institutions from doing the same. FAC ¶¶ 131–39. Specifically, Section 2700 of
1 the San Diego County Zoning Ordinance provides that the regulations governing the A70
2 Zoning District “are intended to create and preserve areas intended primarily for
3 agricultural crop production.” ECF No. 15-4 at 2. Sections 2704 and 2705 provide
4 mechanisms for property owners to obtain a permit to operate within the A70 zone. Id. at
5 3–4. Under Section 2705, property owners who intend to use their property for, among
6 other things, “Civic, Fraternal or Religious Assembly” must obtain a Major Use Permit. Id.
7 at 4. In contrast, under Section 2704, property owners who intend to use their property for,
8 among other things, a small school or cottage industries, may obtain a Minor Use Permit.
9 Id. at 3.
10 Defendants contend Plaintiffs have not adequately shown that the zoning ordinance
11 treats religious institutions differently from secular ones. ECF No. 16 at 17. Specifically,
12 Defendant argues a “small school” or a “cottage industry” are not “equal” for land uses
13 purposes to property intended for religious assembly. Id. at 18. Taking the allegations in
14 the FAC as true, and construing all inferences in Plaintiffs’ favor, the Court concludes these
15 allegations set forth a plausible claim. See Immanuel Baptist Church v. City of Chi., 344 F.
16 Supp. 3d 978, 984 (N.D. Ill. 2018) (motion to dismiss facial equal terms challenge denied
17 where church pleaded facts plausibly suggesting it had a secular comparator that was
18 treated more favorably); Redemption Cmty. Church v. City of Laurel, 333 F. Supp. 3d 521,
19 532–33 (D. Md. 2018) (motion to dismiss facial equal terms challenge denied where church
20 identified various institutions that could have constituted a similarly situated comparator
21 that were treated more favorably).
22 5. Summary
23 For these reasons, the Court DENIES the County’s motion to dismiss Plaintiffs’
24 Claim 2, to the extent Claim 2 is asserting a facial challenge by Mr. Chu to the County’s
25 ordinances governing Major Use and Minor Use permits in the A70 Zoning District. The
26 Court GRANTS the County’s motion to dismiss Plaintiffs’ Claims 1-3 in all other respects.
27 B. First Amendment Claims (Claims 4 and 5)
28 In Claims 4 and 5 of their FAC, Plaintiffs allege the County’s enforcement of its
1 zoning ordinance violates Plaintiffs’ rights under the free exercise, free speech, and free
2 assembly clauses of the First Amendment. FAC ¶¶ 146–169. Defendants move to dismiss
3 these claims for lack of ripeness and failure to state a claim. ECF No. 16 at 13–14, 19–22.
4 The First Amendment of the United States Constitution provides, in relevant part,
5 that “Congress shall make no law respecting an establishment of religion, or prohibiting
6 the free exercise thereof; or abridging the freedom of speech . . . or the right of the people
7 peaceably to assemble . . . .” U.S. Const., amend. I. It is applicable to state action by
8 incorporation through the Fourteenth Amendment. See L.F. v. Lake Wash. Sch. Dist. #414,
9 947 F.3d 621, 626 (9th Cir. 2020); Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d
10 1114, 1122 (9th Cir. 2013).
11 Here, based on the FAC and Plaintiffs’ opposition, Plaintiffs appear to be asserting
12 as-applied federal constitutional challenges to the County’s zoning ordinance, based on the
13 County’s requirement that Plaintiffs obtain a Major Use Permit for the Valley Center
14 Property. See FAC ¶¶ 149, 151–52, 159–60, 166–167; ECF No. 19 at 23 (“Plaintiffs have
15 alleged that the County’s insistence that Plaintiffs obtain a Major Use Permit to use its
16 yurts for meditation—a ‘sincere religious practice’—is inconsistent with treatment of other
17 similar secular land uses in the same zoning district that use their property in similar
18 matters”); 24 (“Plaintiffs’ First Amended Complaint states that the County’s Zoning
19 Ordinance—A70 in particular—clearly analyzes the content of speech and purposes of
20 assembly in determining what permit should be required for certain land uses . . . This type
21 of analysis of the purpose of Plaintiffs’ speech and assembly violates First Amendment
22 protections.”).
23 The Court’s analysis of ripeness is again guided by Guatay. In Guatay, the Ninth
24 Circuit held that the church had not established its first amendment claims were ripe, where
25 the church made “no “discernible independent argument” of ripeness, but merely cited
26 “RLUIPA and general precedent recognizing the existence of these constitutional rights,
27 and attempt[ed] to distinguish [the final decision requirement] in Williamson County.” 670
28 F.3d at 987. The church in Guatay did not adequately “address[] why [their] claims would
1 not be better suited for consideration once a final decision on the Use Permit application
2 issues and the extent of the injury is fully defined.” Id. Here, as in Guatay, Plaintiffs have
3 offered no independent argument or legal authority as to why their First Amendment claims
4 are ripe for adjudication. Accordingly, the Court GRANTS the County’s motion to dismiss
5 Claims 4 and 5 on ripeness grounds.
6 C. Due Process (Claim 6)
7 In Claim 6 of the FAC, Plaintiffs allege that the County violated their rights to due
8 process under the First and Fourteenth Amendment by ordering electricity be terminated
9 from the Valley Center Property without providing Plaintiffs prior notice and an
10 opportunity to be heard. FAC ¶¶ 170–79.
11 1. Generally
12 “The Due Process Clause of the Fourteenth Amendment imposes procedural
13 constraints on governmental decisions that deprive individuals of liberty or property
14 interests.” Nozzi v. Hous. Auth., 806 F.3d 1178, 1190 (9th Cir. 2015). “A procedural due
15 process claim has two distinct elements: (1) a deprivation of a constitutionally protected
16 liberty or property interest, and (2) a denial of adequate procedural protections.” Brewster
17 v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998).
18 2. Constitutionally Protected Liberty or Property Interest
19 The first question is whether Plaintiffs have adequately alleged a constitutionally
20 protected liberty or property interest. “In the context of provision of electrical services, a
21 vested right exists if plaintiff can establish a ‘legitimate claim’ to continued electricity.”
22 Autotek, Inc. v. Cnty. of Sacramento, No. 216CV01093KJMCKD, 2020 WL 4059564, at
23 *17 (E.D. Cal. July 20, 2020) (“Autotek II”), aff’d sub nom. Lull v. Cnty. of Sacramento,
24 No. 20-16599, 2022 WL 171938 (9th Cir. Jan. 19, 2022). “The extent, scope and conditions
25 of a right to continuing electricity are created and defined by state and local rules, and those
26 same rules therefore delineate when one has a claim of entitlement to continued service.”
27 Autotek Inc. v. Cnty. of Sacramento, No. 2:16-cv-01093-KJM-CKD, 2018 WL 836383, at
28 *2 (E.D. Cal. Feb. 13, 2018) (“Autotek I”).
1 “Where a state or local law restricts the ability of a municipal utility provider to
2 terminate service, customers of the provider have a protected property interest in the
3 continuation of service.” Field v. La Paz Cnty., No. CV-03-2214-PHX-SRB, 2006 WL
4 8440645, at *10 (D. Ariz. Apr. 27, 2006) (internal quotation marks omitted); see also
5 Frates v. Great Falls, 568 F. Supp. 1330, 1337 (D. Mont. 1983) (A “specification of
6 reasons, for which services may be terminated, amounts, in essence, to a recognition that
7 termination may be for cause only, and clearly refutes the conclusion that the utility or
8 governing body has a right to terminate services at will.”).
9 Here, the County Construction and Fire Code indicates that the County may not
10 terminate electricity to a property “at will.” Instead, County Construction and Fire Code
11 Section 91.1.112.3 provides a “building official may authorize disconnection of utility
12 service to a building, structure or system regulated by this chapter in case of emergency
13 where the building official determines it is necessary to eliminate an immediate hazard to
14 life or property.” ECF No. 15-21 at 3 (emphasis added). Because Plaintiffs have plausibly
15 alleged that the County’s ability to terminate utilities to the Valley Center Property was
16 restricted, Plaintiff has alleged a plausible entitlement to a property right. See Memphis
17 Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11–12 (1978) (respondents asserted a
18 legitimate due process property interest in the supply of electricity where state law
19 indicated municipal utility could not terminate electricity at will).
20 3. The Process Due
21 The Court next turns to the question of “what process is due.” Brewster, 149 F.3d at
22 983. Here, the County argues it satisfied constitutional due process requirements by
23 complying with the notice requirements in the County Construction and Fire Code. ECF
24 No. 16 at 23. Under County Construction and Fire Code Section 91.1.112.3, where a
25 building official disconnects utilities to a property “in case of emergency” after
26 determining doing so “is necessary to eliminate an immediate hazard to life or property,”
27 prior notice is not required. ECF No. 15-21 at 3.
28 ///
1 Instead, County Construction and Fire Code Section 91.1.112.3(d) provides that:
2
[T]he building official shall notify the serving utility and wherever
3 possible the owner and occupant of the building, structure or service
system of the decision to disconnect prior to taking this action. If not
4
notified prior to disconnecting, the owner or occupant of the building,
5 structure or service system shall be notified in writing, as soon as
practicable thereafter.
6
7 Id. In light of the above, the County asserts that as the use of utilities at the Valley Center
8 Property constituted an “immediate hazard to life or property,” it properly complied with
9 County Construction and Fire Code Section by providing the Plaintiff a post shut-off notice
10 letter. ECF No. 16 at 23.
11 The County fails to adequately support its argument. First, “[o]nce a substantive
12 right has been created, it is the Due Process Clause which provides the procedural
13 minimums, and not a statute or regulation.” Nozzi, 806 F.3d at 1192 (9th Cir. 2015).
14 “Technical compliance with regulatory procedures does not automatically satisfy due
15 process requirements.” Nozzi v. Hous. Auth., 425 F. App’x 539, 542 (9th Cir. 2011); Field,
16 2006 WL 8440645, at *11 (holding that if compliance with statutory procedure was
17 sufficient, “the due process clause would be virtually meaningless, as it would be satisfied
18 every time an official followed state law, regardless of whether that law afforded any
19 process before the deprivation of a property or liberty interest”).
20 In this case, Plaintiffs have alleged that they were denied sufficient notice and an
21 adequate opportunity to be heard. See Memphis Light, 436 U.S. at 13 (“[A]n elementary
22 and fundamental requirement of due process in any proceeding which is to be accorded
23 finality is notice reasonably calculated, under all the circumstances, to apprise interested
24 parties of the pendency of the action and afford them an opportunity to present their
25 objection.”). In contrast, the County has failed to address how the process it afforded
26 Plaintiffs complied with constitutional due process. See Corbett v. Pharmacare U.S., Inc.,
27 567 F. Supp. 3d 1172, 1194 (S.D. Cal. 2021) (“On a motion to dismiss, it is
28 the defendant’s burden to demonstrate that plaintiff has failed to state a claim.”).
1 Second, if technical compliance with County Construction and Fire Code Section
2 91.1.112.3(d) were sufficient in this case, the propriety of the County’s actions would then
3 depend on whether the County properly cut power to the Valley Center Property in an
4 “emergency situation” in order “to eliminate an immediate hazard to life or property.” ECF
5 No. 15-21 at 3. This argument raises a factual dispute not suitable for resolution on a motion
6 to dismiss.
7 For these reasons, the Court DENIES the County’s motion to dismiss Claim 6.
8 D. California Constitution (Claim 7)
9 In Claims 4 and 5 of their FAC, Plaintiffs allege that the County’s enforcement of
10 its zoning ordinance violates Plaintiffs’ rights to the free exercise of religion and to freely
11 assemble under the California Constitution. FAC ¶¶ 180–186. The Parties’ arguments as
12 to whether Plaintiffs’ state constitutional claims should be dismissed are perfunctory,
13 largely incorporating their arguments as to Plaintiffs’ federal constitutional claims. ECF
14 No. 16 at 24; ECF No. 19 at 25; ECF No. 20 at 9.
15 Based on the FAC and Plaintiffs’ opposition, the Court construes Plaintiffs’ claim
16 as an as-applied state constitutional challenge to the County’s zoning ordinance that
17 mirrors their federal constitutional claims. See FAC ¶¶ 183–184; ECF No. 19 at 25. As
18 with Plaintiffs’ federal constitutional claims, Plaintiffs have offered no independent
19 argument or legal authority as to why their state constitutional claims are ripe for
20 adjudication. In the absence of meaningful briefing, the Court concludes Plaintiffs’ state
21 constitutional claims fail for the same reasons of ripeness. See Vernon v. City of L.A., 27
22 F.3d 1385, 1392 (9th Cir. 1994) (“California case law suggests that analysis of a claim of
23 the constitutional right to the free exercise of religion is generally similar under both federal
24 and state constitutional law.”); Brunson v. Dep’t of Motor Vehicles, 72 Cal. App. 4th 1251,
25 1256 (1999) (“The California Supreme Court has never applied the free exercise clause of
26 the California Constitution independent of a federal free exercise claim. Consequently, no
27 California Supreme Court case has ever articulated a standard applicable to the free
28 exercise clause of the California Constitution different from that applicable to the free
1 exercise clause of the United States Constitution.”). For these reasons, the Court GRANTS
2 the County’s motion to dismiss Claim 7.3
3 IV. LEAVE TO AMEND
4 The Parties have not addressed whether Plaintiffs should be granted leave to amend.
5 See ECF Nos. 16, 19, 20. Although Plaintiffs have already amended their complaint once,
6 they may be able to cure the defects identified herein by further amendment. See
7 Knappenberger v. City of Phoenix., 566 F.3d 936, 942 (9th Cir. 2009) (“Leave to amend
8 should be granted unless the district court determines that the pleading could not possibly
9 be cured by the allegation of other facts.”) (internal quotation marks omitted). The Court
10 GRANTS Plaintiffs leave to amend the claims that are dismissed herein.
11 V. CONCLUSION
12 For the above reasons, the Court GRANTS IN PART and DENIES IN PART the
13 County’s motion as follows:
14 A. RLUIPA Claims
15 1. The Court DENIES the County’s motion to dismiss Claim 2, to the extent
16 Claim 2 is asserting a facial challenge by Mr. Chu to the County’s ordinances governing
17 Major Use and Minor Use permits in the A70 Zoning District.
18
19

20
21 3 The County requests that the Court take judicial notice of documents attached to the
County’s motion to dismiss. See ECF No. 16-1. The majority of the documents the County
22
has attached are already included as part of Plaintiffs’ FAC, and are properly subject to
23 judicial notice. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)
(“When a plaintiff has attached various exhibits to the complaint, those exhibits may be
24
considered in determining whether dismissal was proper without converting the motion to
25 one for summary judgment.”). The remainder of the documents—including photos of
Valley Center Property—are immaterial to the Court’s decision. Jones v. Best Serv. Co.,
26
No. CV 14-9872 SS, 2017 WL 490902, at *5 (C.D. Cal. Feb. 6, 2017), aff’d, 700 F. App’x
27 580 (9th Cir. 2017) (denying request for judicial notice as unnecessary where documents
were immaterial to the Court’s decision). For these reasons, the Court GRANTS the
28
1 2. The Court GRANTS the County’s motion to dismiss Claims 1-3 in all other
2 || respects.
3 B. Federal Constitutional Claims
4 3. The Court GRANTS the County’s motion to dismiss Claim 4-5.
5 4. The Court DENIES the County’s motion to dismiss Claim 6.
6 C. State Constitutional Claim
7 5. The Court GRANTS the County’s motion to dismiss Claim 7.
8 6. If Plaintiffs choose to file a Second Amended Complaint, Plaintiffs must do
9 ||so within fourteen (14) days of the date of this Order. The County’s time to respond to the
10 || operative pleading will begin to run on the earlier of the date Plaintiffs file a Second
11 |} Amended Complaint or fourteen (14) days from the date of this Order.
12 IT IS SO ORDERED.
13 ||Dated: February 24, 2025 febut c Phonan
14
15 Hon. Robert S. Huie
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10805471. Public record. Not legal advice.