Appendix — Town of Surfside v. Midrash Sephardi, Inc.

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT FILED APRIL 21, 2004

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-13858

D.C. Docket No. 99-01566-CV-UUB

MIDRASH SEPHARDI, INC., YOUNG ISRAEL

OF BAL HARBOR, INC.,

Plaintiffs-Counter-

Defendants-Appellants,

Vv.

TOWN OF SURFSIDE, a Florida Municipal Corporation,

Defendant-Counter-

Claimant-Appellee,

PAUL NOVACK, Individually and in his capacity as .

Mayor of the Town of Surfside, et al.,

Defendants.

Appeals from the United States District Court

for the Southern District of Florida

(April 21, 2004)

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Appendix A

Before WILSON and KRAVITCH, Circuit Judges, and

GOLDBERG’, Judge.

WILSON, Circuit Judge:

Young Israel of Bal Harbour (“Young Israel”) and

Midrash Sephardi (“Midrash”), two synagogues serving the

Surfside-Bal Harbour-Bay Harbor Islands area of Miami-

Dade County, Florida, appeal the district court’s entry of

summary judgment in favor of the Town of Surfside

(“Surfside”) on the synagogues’ claims challenging the

Surfside Zoning Ordinance (““SZO”) under the Religious

Land Use and Institutionalized Persons Act (“RLUIPA” or

the “Act”), 42 U.S.C. § 2000cc et seq.' We first hold that the

SZO’s provision excluding churches and synagogues from

locations where private clubs and lodges are permitted

violates the equal terms provision of RLUIPA. Consequently,

we must decide whether RLUIPA is a constitutional exercise

of Congress’s authority under the First, Tenth, and Fourteenth

Amendments. Finding that it is, we reverse the decision of

the district court.

* Honorable Richard W. Goldberg, Judge, United States Court

of International Trade, sitting by designation.

1. The plaintiffs also contend that the SZO violates their rights

under the First and Fourteenth Amendments, as well as their rights

under the Florida Religious Freedom and Restoration Act. Because

we sustain the congregations’ RLUIPA challenge to the ordinance,

we need not reach these additional claims.

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Background

Surfside, a small coastal town north of the City of Miami

Beach and south of Bal Harbour, Florida, comprises roughly

one square mile and has approximately 4,300 residents and

an additional estimated tourist population of 2,030. Midrash

and Young Israel (collectively the “congregations’’) are small

Orthodox Jewish synagogues that serve the Surfside area.

Together they have over one hundred members who reside

in or around Surfside; their attendance triples during the

winter tourist months. In addition to Midrash and Young

Israel, two churches and two other synagogues presently

operate in Surfside.

I. The Challenged Ordinance

Chapter 90 of the Code of the Town of Surfside, Florida,

(hereinafter “SZO § X”’) divides Surfside into eight zoning

districts, identified in Article III of the SZO. Article IV of

the SZO sets forth the specific regulations governing the

applicable districts, and delineates permitted uses as of right,

and uses permitted subject only to special use permit or prior

conditional use approval. Surfside’s zoning scheme is

permissive: any use not specifically permitted is prohibited.

See SZO § 90-6(1).

Under Article IV, churches and synagogues are prohibited

in seven of the eight zoning districts. SZO permits churches

and synagogues in the “RD-1 two-family residential district”

(“RD-1 district’) by way of conditional use permit (“CUP”’)

obtained after approval by the Surfside Town Commission.

SZO § 90- 147(d). The SZO requires a CUP because

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conditional uses are “generally of a public or semipublic

character . . . but because of the nature of the use and possible

impact on neighboring properties, require the exercise of

planning judgment....” SZO § 90-41(a). CUPs are also

required for educational institutions and museums, off-street

parking lots and garages, public and governmental buildings,

and public utilities. See SZO § 90-41(b)(1)-(5).?

Surfside’s business district, which encompasses two

blocks within the town, is defined by SZO § 90-152

“to provide for retail shopping and personal service needs of

the town’s residents and tourists.” SZO § 90-152(a). Section

90-152 further states that regulations governing the business

district are “intended to prevent uses and activities which

might be noisy, offensive, obnoxious, or incongruous in

behavior, tone or appearance and which might be difficult to

police.” Jd. Theaters and restaurants are permitted on the first

floor level of the business district, while private clubs and

lodge halls, health clubs, dance studios, music instruction

studios, modeling schools, language schools, and schools of

2. The standards and procedures for conditional use approval

are set forth in SZO § 90-41, which provides that conditional use

approval shall only be granted “where it has been clearly shown that

the public health, safety, morals, and general welfare will not be

adversely affected . . . and that necessary safeguards will be provided

for the protection of surrounding property.” SZO § 90-41(b). Section

90-41 further provides that “[t}he planning and zoning board’s report

to the town commission may contain recommendations regarding

conditions which should be imposed by the town commission in

approving the conditional use,” and that “[t]he town commission

may establish these and/or additional conditions for an approval.”

SZO § 90-41(d). The SZO does not articulate any other standards

governing the CUP procedure.

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By sees pels Ba ia a

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Appendix A

athletic instruction are only permitted above the first floor.

See SZO § 90-152(b)(8), (18). Although permitted, Surfside

does not have private clubs, social clubs, lodges or theaters.

Churches and synagogues are prohibited in the business

district.’

II. The Litigants

Midrash was formed in 1995 and leases the second floor

of 9592 Harding Avenue from Ohio Savings Bank (“OSB”).

The Harding Avenue location is within Surfside’s business

district, on the south side of the 96th Street boundary between

the towns of Bal Harbour and Surfside, three blocks away

from Bay Harbor Islands. Midrash draws its membership

from all three towns in the Surfside-Bal Harbour-Bay Harbor

area.

Surfside denied a Midrash application for a special use

permit, and denied Midrash’s application for a zoning

variance to operate in its current location because Midrash

failed to provide written permission from OSB.‘ Midrash did

3. Although other uses “having the same general characteristics

and of such nature that the same would not lower the standards of

the area” may be permitted in the business district by way of special

use exception, churches and synagogues may not apply for special

use exceptions because churches and synagogues are only permitted

“in any district which they are specifically allowed.” Compare SZO

§ 90-152(e) with SZO § 90- 41(b) (emphasis added).

4. Written permission from the owner is required for all

applications for rezoning, including applications for variances,

conditional uses, and special uses. See SZO § 90-58(6), (7).

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not appeal either denial, nor did it seek OSB’s permission to

re-apply for either a special use permit or a variance.°

In March 1999, Young Israel began leasing space in the

Coronado Hotel, located in Surfside’s tourist district, one

block south of the 96th Street boundary between the towns

of Bal Harbour and Surfside and several blocks away from

Bay Harbor Islands. In November 2000, the Coronado Hotel

was sold, and as a result, Young Israel congregants joined

temporarily with Midrash congregants in Midrash’s Harding

Avenue location. Like Midrash, Young Israel draws its

membership from all three towns in the Surfside-Bal

Harbour-Bay Harbor area. Young Israel has never attempted

to obtain a CUP or a variance. Both congregations maintain

that any attempt to relocate in the permitted RD-1 district

would be futile because suitable land is unavailable.

The members of Midrash and Young Israel adhere to the

strict observance of Orthodox Judaism. Synagogue services

include religious prayer, worship, song, Torah readings,

sermons, group discussions, required Sabbath and holiday

festivities, celebrations of religious events and religious

study. A central tenet of Orthodox Jewish faith requires daily

5. Section 90-91 provides that the town commission may grant

approval for special exceptions, special use permits or variances “after

having received a report and recommendation of the planning and

zoning board.” SZO § 90-91(a). “Special exceptions or variances

shall only be granted in cases of demonstrable and exceptional

hardship as distinguished from purposes or reasons of convenience,

profit or caprice.” SZO § 90- 91(b). Neither party argues that the

synagogues have shown, or indeed could show, the requisite hardship

in order to obtain special exceptions or variances.

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prayers and the presence of a “minyan”—a quorum of ten

males over the age of thirteen—for the reading from the Torah

on the weekly Sabbath and religious holidays. According to

the synagogues, they have hosted weddings, Bar-Mitzvahs,

Brit-Milahs, community holiday meals and festivities,

lectures and group discussions on social and political issues,

meetings on community welfare and public service activities,

and singles events, all within the context of their religious

and spiritual missions.

Orthodox Judaism forbids adherents to use cars or other

means of transportation during the weekly Sabbath and

religious holidays; thus, adherents prefer to gather for

worship and religious study in synagogues close enough to

their homes to allow them to walk to services.° To this end,

the congregations claim that the RD-1 district is out of the

required walking range for a significant number of their

members, particularly elderly ones, who reside on the

northern side of Surfside and in the neighboring Bal Harbour

and Bay Harbor communities.

Surfside claims that the SZO was designed in part to

invigorate the business district and to create a strong tax base

through its retail district.’ The economic viability of the

6. Surfside argues that Jewish law permits the elderly and

persons with medical conditions to use transportation to attend

services, and thus that walking is not a per se requirement of Orthodox

Judaism. It is worth noting at this point that “[i]t is not within the

judicial ken to question the centrality of particular beliefs or practices

to a faith, or the validity of particular litigants’ interpretations of

those creeds.” Hernandez v. Commissioner, 490 U.S. 680, 699 (1989).

7. Surfside cites the 1995-2000 Comprehensive Plan, adopted

pursuant to Local Government Comprehensive Planning and Land

(Cont’d)

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business district—the only retail service area in Surfside—

is critical to Surfside’s tax base, job base, and servicing the

needs of Surfside’s residents. Accordingly, Surfside avers that

allowing churches and synagogues in the business district

(Cont'd)

Development Regulation Act, Fla. Stat. Ann. § 163.3161 et seq. The

1995-2000 Plan states that Surfside’s primary goal in drafting the

SZO is to “[e]nsure that the character and location of future land

uses directs growth in such a way so as to provide maximum economic

benefit” to Surfside. Thus, under the 1995-2000 Plan, Surfside

encourages, inter alia, 1) revitalization of the existing Harding

Avenue business area; 2) concentration of commercial uses in and

around Harding Avenue; 3) development of commercial office space

along Collins Avenue between 93rd and 96th Streets to provide a

greater population for retail and service shops along Harding Avenue,

and 4) development of commercial uses along 94th, 95th, and 96th

Streets between Collins and Harding Avenues.

The 2010 Comprehensive Plan states, inter alia, that Surfside’s

objectives are to 1) encourage private investment in the revitalization

of the Harding Avenue business district; 2) maintain and improve

zoning regulations which permit the concentration of commercial

uses in and around the established Harding Avenue business area;

and 3) maintain and improve zoning regulations which permit

commercial office space along Collins Avenue as part of mixed use

developments which provide concentrations of workers and/or

residents to support retail and service uses along Harding Avenue.

We have said that “Florida’s land use planning statutes provide

for the adoption of comprehensive plans to control and direct the

use and development of property within a county or municipality.

Once a comprehensive plan for an area is adopted, all development

approved by a governmental agency must be consistent with the plan.”

Eide v. Sarasota County, 908 F.2d 716, 718-19 (11th Cir.1990)

(citations omitted).

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would erode Surfside’s tax base, on which Surfside is

dependent for revenue, and would result in economic

hardship on the residents. Because Surfside has a difficult

time competing for business with the nearby Shops at Bal

Harbour—and recently lost a major retail supermarket

chain—Surfside claims that it cannot afford to place non-

economic establishments in the business district without

risking the economic stability of Surfside.

Surfside allows private clubs and similar places of

assemblage in the business district because it believes such

organizations are compatible with the retail character of the

business district. Surfside contends that private clubs are

entertainment centers and typically occupy retail space in

commercial districts where revitalization is required. Surfside

argues that churches and synagogues, on the other hand,

contribute little synergy to retail shopping areas and disrupt

the continuity of retail environments.

III. Procedural History

In May 1999, Surfside initiated two actions against the

congregations and their respective lessors in state court to

enjoin the use of the Harding Avenue site and the Coronado

Hotel as synagogues and to impose civil penalties for alleged

violations of the SZO. The actions were removed to federal

court and dismissed without prejudice. In July 1999, the

congregations filed the instant action seeking declaratory and

injunctive relief under 42 U.S.C. § 1983.8 Surfside answered

8. The synagogues’ original complaint alleged a facial equal

protection violation, which was replaced in the second amended

(Cont’d)

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and filed a two-count counterclaim seeking declaratory and

injunctive relief, as well as civil penalties and attorneys’ fees.

Both parties moved for summary judgment. Surfside

submitted evidence from land use experts on the economic

viability of a small business district, who asserted that

allowing churches and synagogues in the business district

would erode Surfside’s tax base. The congregations attempted

to rebut this evidence by submitting affidavits from rabbis

and congregants relating to the use and impact of the

synagogues and the likely burden should the synagogues be

required to relocate. The district court granted summary

judgment for Surfside on five of six counts of the

congregations’ complaint and denied summary judgment in

full for the congregations.

In November 2000, the congregations filed a third

amended complaint alleging an additional claim based on

RLUIPA. The district court granted summary judgment in

favor of Surfside on all aspects of the congregants’ RLUIPA

claim and subsequently granted Surfside’s counterclaim for

an injunction.

(Cont'd)

complaint with an as-applied equal protection claim. Upon reviewing

the record, we find that the synagogues abandoned their facial equal

protection claim. The district court was not presented with and did

not resolve an equal protection argument based on Surfside’s

treatment of private clubs and lodges. Therefore, we will not consider

this argument on appeal. See Walker v. Jones, 10 F.3d 1569, 1572

(11th Cir.1994). To the extent that the argument overlaps with the

synagogues’ RLUIPA claim, we discuss that issue infra.

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We issued a stay of injunction pending appeal. Pursuant

to 28 U.S.C. § 2403(a), the United States has intervened to

defend the constitutionality of RLUIPA.

Standard of Review

We review a grant of summary judgment de novo,

applying the same legal standards that bind the district court.

See Cast Steel Prods., Inc. v. Admiral Ins. Co., 348 F.3d 1298,

1301 (11th Cir.2003). The construction and constitutionality

of a statute are questions of law that we review de novo. See

Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1277 (11th

Cir.2001).

A motion for summary judgment should be granted when

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c)

mandates the entry of summary judgment . . . against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Morisky

v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). On a

summary judgment motion, the record and all reasonable

inferences that can be drawn from it must be viewed in the

light most favorable to the non-moving party. See Cast Steel,

348 F.3d at 1301.

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Discussion

I. Justiciability

As an initial matter, we must address whether the

congregations have standing to bring their claims and, with

respect to their claim challenging the CUP procedure, whether

that claim is ripe.

Both ripeness and standing are doctrines relating to the

justiciability of the congregations’ claims, which encom-

passes both constitutional and prudential concerns.

See Hallandale Prof’! Fire Fighters Local 2238 v. City of

Hallandale, 922 F.2d 756, 759 (11th Cir.1991). The

constitutional aspect of justiciability focuses on whether the

Article III requirements of actual “case or controversy” are

met, while the prudential aspect asks whether it is appropriate

for this case to be litigated in a federal court by these parties

at this time. See id. at 759-60.

Article III of the United States Constitution limits the

power of federal courts to adjudicating actual “cases” and

“controversies.” U.S. Const. art. Ill, § 2, cl. 1. “This case-

or-controversy doctrine fundamentally limits the power of

federal courts in our system of government, and helps to

‘identify those disputes which are appropriately resolved

through judicial process.’ “ Ga. State Conference of NAACP

Branches v. Cox, 183 F.3d 1259, 1262 (11th Cir.1999)

(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).

The most significant doctrine of case-or-controversy is

the requirement of standing. /d. “In essence the question of

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standing is whether the litigant is entitled to have the court

decide the merits of the dispute or of particular issues.”

Warth v. Seldin, 422 U.S. 490, 498 (1975). A party seeking

to invoke federal jurisdiction must demonstrate: 1) an injury

in fact or an invasion of a legally protected interest; 2) a

direct causal relationship between the injury and the

challenged action; and 3) a likelihood of redressability. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see

also Pittman v. Cole, 267 F.3d 1269, 1282-85 (11th Cir.2001).

In evaluating whether a party has standing, we must “accept

as true all material allegations of the complaint, and must

construe the complaint in favor of the complaining party.”

Warth, 422 U.S. at 501.

Surfside argues that the congregations lack standing to

assert that the SZO violates their constitutional rights because

neither Midrash nor Young Israel has attempted to locate

property in the RD-1 district, nor has either synagogue

applied for a CUP or received OSB’s permission to do so.

Surfside’s argument misses the point of the congregations’

contention: even if a “suitable property” existed in RD-1

district, the congregations believe they have a legal right to

remain in the business district.

Surfside has already sought to enforce § 90-152 against

the congregations in an earlier state court action. In the instant

action, Surfside seeks an injunction prohibiting the

congregations from continuing at their current location, as

well as an imposition of civil penalties. As a result of

Surfside’s attempts to enforce the provisions of § 90-152

against them, the congregations have suffered the requisite

injury for standing purposes. We find that the congregations

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have standing to challenge the application of business district

regulations outlined in SZO § 90-152.’

The congregations also seek to challenge the CUP

requirement and procedure found in SZO § 90-41. The district

court determined that the synagogues lacked standing to

contest the constitutionality of § 90-41 because by failing to

follow procedures for obtaining a CUP, the congregations

had not suffered an injury because of the application of

§ 90-41. Midrash nevertheless contends that it has standing

to challenge the CUP because of the likelihood that Surfside

will enforce the provision against it in the future. Section

90- 41 requires a CUP for churches and synagogues “in any

district in which they are specifically allowed.” Reading

§ 90-41 in pari matera with § 90-152, the congregations, if

victorious, must apply for a CUP to continue operating at

their current location. Assuming the correctness of the

congregations’ challenge to the validity of § 90-152 under

RLUIPA, the congregations argue that any declaratory or

injunctive relief invalidating § 90-152 would be incomplete

if their challenge to § 90-41 were not considered as well.

The congregations’ CUP challenge implicates the

doctrine of ripeness, which, like the standing doctrine,

involves consideration of both constitutional and prudential

concerns. See Pittman, 267 F.3d at 1278. The purpose of the

9. However, we find that neither Midrash nor Young Israel has

standing to challenge the application of § 90-151, which defines

Surfside’s tourist district and, like § 90-152, permits private clubs

but excludes churches and synagogues. See 90-151(b)(2). Neither

party is located in the tourist district, and neither party has concrete

and specific plans to locate in there.

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ripeness doctrine is “to prevent the courts, through avoidance

of premature adjudication, from entangling themselves in

abstract disagreements. .. .” Abbott Labs. v. Gardner, 387

U.S. 136, 148 (1967), abrogated on other grounds, Califano

v. Sanders, 430 U.S. 99 (1977). In deciding whether a claim

is ripe for adjudication or review, we look primarily at two

considerations: 1) the fitness of the issues for judicial

decision, and 2) the hardship to the parties of withholding

court consideration. /d. at 149.

The congregations’ CUP challenge fails the prudential,

or “fitness,” prong of the ripeness inquiry. Because the

congregations have not received a final decision on a CUP

application—indeed, neither party has seriously applied for

a CUP—the congregations do not raise a purely legal issue

which we can decide in the abstract without further factual

development. Cf. id. Instead, the congregations’ allegations

amount to mere speculation about contingent future events.

We cannot determine from the record how the CUP will be

applied and whether Surfside will use the CUP process to

deny the plaintiffs permits to operate their synagogues.

The record contains no significant evidence of Surfside’s

having denied CUPs in the past, and thus, the impact of the

CUP requirement is not sufficiently direct and immediate as

to render the issue appropriate for judicial review. Such

inquiry is better postponed until the issues are presented in

the more concrete circumstance of a challenge to § 90-41 as

applied.

We turn to the plaintiff’s challenge to SZO § 90-152

under RLUIPA.

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I]. RLUIPA

Two operative subsections of RLUIPA are at issue in this

case: § (a) (the “substantial burden provision”), and § (b)(1)

(the “equal terms provision”). We address each of these

sections in turn.

A. Substantial Burden on Religious Exercise

Section (a)(1) of RLUIPA provides:

No government shall impose or implement a land

use regulation in a manner that imposes a

substantial burden on the religious exercise of a

person, including a religious assembly or

institution, unless the government demonstrates

that imposition of the burden on that person,

assembly, or institution—

(A) is in furtherance of a compelling

interest; and

(B) is the least restrictive means of

furthering that compelling governmental

interest.

42 U.S.C. § 2000cc(a)(1).

Section (a)(1) applies only if one of three jurisdictional

tests is first met: either (A) the burden is imposed in a

federally-funded program or activity; (B) the burden affects,

or removal of the burden would affect, interstate commerce,

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or (C) the “burden is imposed in the implementation of a

land use regulation or system of land use regulations, under

which a government makes .. . individualized assessments

of the proposed uses for the property involved.” 42 U.S.C.

§ 2000cc(a)(2). “Land use regulation” is defined as a “zoning

or landmarking law, or the application of such a law, that

limits or restricts a claimant’s use or development of land

(including a structure affixed to land), if the claimant has

... [a] leasehold ... in the regulated land or a contract or

option to acquire such an interest.” 42 U.S.C. § 2000cc-5(5).

Jurisdiction in this case is appropriate under RLUIPA’s

“individualized assessment” test. See id. at § 2000cc(a)(2)(C).

The SZO requires each church and synagogue to apply for a

CUP prior to operating in Surfside. This assessment

procedure, which results in a case-by-case evaluation of the

proposed activity of religious organizations, carries the

concomitant risk of idiosyncratic application of SZO

standards. Surfside officials may use their authority to

individually evaluate and either approve or disapprove of

churches and synagogues in potentially discriminatory ways.

Thus, SZO is quintessentially an “individual assessment”

regime vis-a-vis churches and synagogues.

The general rule of RLUIPA is that state action

substantially burdening “religious exercise” must be justified

as the least restrictive means of furthering a compelling

governmental interest. Jd. at §§ 2000cc(a)(1), 2000cc-1(a).

To invoke the protection of § (a) of RLUIPA, plaintiffs bear

the burden of first demonstrating that the regulation

substantially burdens religious exercise. See id. at § 2000cc-

2(b). Because the alleged burden is imposed as a result of

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SZO, we first consider whether “religious exercise” 1S

implicated by either the SZO or its implementation.

1. Religious Exercise

Past cases have held that zoning decisions do not

generally impose a substantial burden on religious exercise.

See Grosz v. City of Miami Beach, 721 F.2d 729, 739 (11th

Cir.1983); see also Christian Gospel Church, Inc. v. City and

County of San Francisco, 896 F.2d 1221, 1224 (9th Cir.1990);

Messiah Baptist Church v. County of Jefferson, 859 F.2d 820,

824-25 (10th Cir.1988); Lakewood, Ohio Congregation of

Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303,

306-07 (6th Cir.1983). These cases all considered whether

the “religious exercise” implicated by zoning decisions was

integral to a believer’s faith. RLUIPA obviates the need for

such analysis by providing a statutory definition of “religious

exercise.”

Under RLUIPA, “religious exercise” includes the

“use, building, or conversion of real property for the purpose

of religious exercise. . . .” 42 U.S.C. § 2000cc5(7)(B). Unlike

the suggestions made in the cases cited above, “religious

exercise” does not have to be “compelled by, or central to, a

system of religious belief.” /d. at § 2000cc-5(7)(A). In passing

RLUIPA, Congress recognized that places of assembly are

needed to facilitate religious practice, as well as the

possibility that local governments may use zoning regulations

to prevent religious groups from using land for such purposes.

Thus, challenges to zoning ordinances are expressly

contemplated by the statute, and there is no doubt that the

congregations’ challenge concerns “religious exercise” within

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the meaning of RLUIPA. Therefore, the question then

becomes whether the challenged zoning regulations, or the

application thereof, effect a “substantial burden” on the

congregations’ use of real property for the purpose of

religious exercise. We turn to this question.

2. Substantial Burden

Any exercise of statutory interpretation begins first with

the language of the statute in question. See Nat'l Coal Ass'n

v. Chater, 81 F.3d 1077, 1081 (11th Cir.1996). Because

RLUIPA does not define “‘substantial burden,” we give the

term its ordinary or natural meaning. See id. Although the

legislative history of a statute is relevant to the process of

statutory interpretation, “we do not resort to legislative

history to cloud a statutory text that is clear.” Ratzlafv. United

States, 510 U.S. 135, 147-48 (1994). We turn, therefore, to

other instances in which courts have defined or discussed

the term “substantial burden.”

The Supreme Court’s definition of “substantial burden”

within its free exercise cases is instructive in determining

what Congress understood “substantial burden” to mean in

RLUIPA. The Court’s articulation of what constitutes a

“substantial burden” has varied over time. See, e.g., Lyng v.

Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439,

450 (1988) (indicating that no substantial burden exists where

regulation does not have “a tendency to coerce individuals

into acting contrary to their religious beliefs”); Hobbie v.

Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141

(1987) (finding substantial burden when government put

“substantial pressure on an adherent to modify his behavior

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and to violate his beliefs”); Thomas v. Review Bad. of Ind.

Employment Sec. Div., 450 U.S. 707, 718 (1981) (same);

Sherbert v. Verner, 374 U.S. 398, 404 (1963) (finding a

substantial burden when an individual is required to “choose

between following the precepts of her religion and forfeiting

benefits, on the one hand, and abandoning one of the precepts

of her religion . . . on the other”); but see Bowen v. Roy, 476

U.S. 693, 707-08 (1986) (finding no substantial burden where

government action interfered with, but did not coerce, an

individual’s religious beliefs); Lyng, 485 U.S. at 452 (same).

We have held that an individual’s exercise of religion is

“substantially burdened” if a regulation completely prevents

the individual from engaging in religiously mandated activity,

or if the regulation requires participation in an activity

prohibited by religion. See Cheffer v. Reno, 55 F.3d 1517,

1522 (11th Cir.1995) (applying the Religious Freedom

Restoration Act, we found no substantial burden when

religion did not require particular means of expressing

religious view and alternative means of religious expression

were available); Church of Scientology Flag Serv. Org., Inc.

v. City of Clearwater, 2 F.3d 1514, 1550 (11th Cir.1993)

(finding a substantial burden when regulation had the effect

of mandating religious conduct).

In interpreting the same provision of RLUIPA as we have

before us today, the Seventh Circuit recently declared:

in the context of RLUIPA’s broad definition of

religious exercise, a land-use regulation that

imposes a substantial burden on religious exercise

is one that necessarily bears direct, primary, and

———————————————

hea Be a

2la

Appendix A

fundamental responsibility for rendering religious

exercise—aincluding the use of real property for

the purpose thereof within the regulated

jurisdiction generally—effectively impracticable.

Civil Liberties for Urban Believers v. City of Chicago, 342

F.3d 752, 761 (7th Cir.2003) (hereinafter “CLUB”). While

we decline to adopt the Seventh Circuit’s definition—which

would render § b(3)’s total exclusion prohibition

meaningless'°—we agree that “substantial burden” requires

something more than an incidental effect on religious

exercise.

The combined import of these articulations leads us to

the conclusion that a “substantial burden” must place more

than an inconvenience on religious exercise; a “substantial

burden” is akin to significant pressure which directly coerces

the religious adherent to conform his or her behavior

accordingly. Thus, a substantial burden can result from

pressure that tends to force adherents to forego religious

precepts or from pressure that mandates religious conduct.

The congregations argue that requiring them to locate

their synagogues in the RD-1 district constitutes a substantial

burden for two related reasons. First, they contend that

relocation would require their congregants to walk farther.

Specifically, they suggest that the additional blocks would

10. The “exclusions and limits” provision provides that

“[njo government shall impose or implement a land use regulation

that—(A) totally excludes religious assemblies from a jurisdiction;

or (B) unreasonably limits religious assemblies, institutions, or

structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3).

22a

Appendix A

greatly burden congregants who are ill, young or very old.

The inconvenience occasioned on these congregants would

cause them to stop attending services altogether, significantly

impairing the synagogues’ operation. As a result, the

congregations suggest that the significant decrease in

attendance would require them to cease operations altogether,

thereby creating an obvious substantial burden on their

religious exercise."

Viewing the evidence in a light favorable to the

congregations, we first note that they do not claim that their

current location has some religious significance such that

their faith requires a synagogue at this particular site.

11. In addition to these burdens, the congregations suggest that

they will not be able to find land or a facility sizable enough to

accommodate their congregations in the permitted RD-1 district. That

the congregations may be unable to find suitable alternative space

does not create a substantial burden within the meaning of RLUIPA.

As the Seventh Circuit noted, “whatever specific difficulties [the

plaintiff church] claims to have encountered, they are the same ones

that face all [land users], not merely churches. The harsh reality of

the marketplace sometimes dictates that certain facilities are not

available to those who desire them.” Love Church v. City of Evanston,

896 F.2d 1082, 1086 (7th Cir.1990).

The congregations also contend that the burden of requiring them

to apply for a CUP constitutes a substantial burden on religious

exercise. Requiring churches and synagogues to apply for CUPs

allows the zoning commission to consider factors such as size,

congruity with existing uses, and availability of parking. We have

found that such reasonable “run of the mill” zoning considerations

do not constitute substantial burdens on religious exercise. See Lady

J. Lingerie, Inc. v. Jacksonville, 176 F.3d 1358, 1362 (11th Cir.1999).

23a

Appendix A

Although they are not permitted to locate in the business

district, the congregations have the alternative of applying

for a permit to operate only a few blocks from their current

location. For purposes of evaluating whether the SZO exacts

a substantial burden within the meaning of RLUIPA, the

relevant inquiry is whether and to what extent this particular

requirement burdens the congregations’ religious exercise.

While walking may be burdensome and “walking farther”

may be even more so, we cannot say that walking a few extra

blocks is “substantial,” as the term is used in RLUIPA, and

as suggested by the Supreme Court. The permitted RD-1

district is in the geographic center of a relatively small

municipality, proximate to the business, tourist and

residential districts. Deposition testimony indicated that

congregants wishing to practice Orthodox Judaism

customarily move where synagogues are located and do not

typically expect the synagogues to move closer to them.

See Casper Dep. at 23-24. In any given congregation, some

members will necessarily walk farther than others, and,

inevitably, some congregants will have greater difficulty

walking than others. While we certainly sympathize with

those congregants who endure Floridian heat and humidity

to walk to services, the burden of walking a few extra blocks,

made greater by Mother Nature’s occasional incorrigibility,

is not “substantial” within the meaning of RLUIPA.

Were we to adopt the synagogues’ reasoning, it would

be virtually impossible for a municipality to ensure that no

individual will be burdened by the walk to a temple of choice.

Municipalities that allow religious exemptions to alleviate

even the small burden of walking a few extra blocks would

24a

Appendix A

run the risk of impermissibly favoring religion over other

secular institutions, or of favoring some religious faiths over

others.

Given the facts in this case, the SZO does not exact a

“substantial” burden on the congregations’ religious exercise.

Because we cannot say that the SZO imposes a substantia!

burden on religious exercise, the congregations have failed

to establish a prima facie case under § (a). We need not reach

the question of whether Surfside can justify the burden

created by articulating a compelling government interest, nor

need we reach the constitutionality of § (a). We turn next to

the second argument advanced by the congregations under

RLUIPA: whether Surfside’s favorable treatment of private

clubs and lodges relative to churches and synagogues violates

RLUIPA’s equal terms provision.

B. Equal Terms

The congregations argue that the SZO violates § (b)(1)

of RLUIPA, which provides that “[n]o government shall

impose or implement a land use regulation in a manner that

treats a religious assembly or institution on less than equal

terms with a nonreligious assembly or institution.” 42 U.S.C.

§ 2000cc(b)(1).

The Seventh Circuit has stated that “the substantial

burden [§ (a)] and nondiscrimination provisions [§ (b)] are

operatively independent of one another.” CLUB, 342 F.3d at

762. Indeed, the application of § (b)(1) occasions difficulties

of statutory construction not encountered when addressing

§ (a)’s prohibition against substantia! burdens on religious

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25a

Appendix A

exercise. First, § (b)(1) does not require the plaintiff to meet

a threshold jurisdictional test similar to that articulated in

§ (a)(2). Second, while § (b)(1) has the “feel” of an equal

protection law, it lacks the “similarly situated” requirement

usually found in equal protection analysis. See City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447-50

(1985). Third, unlike § (a), § (b)(1) renders a municipality

strictly liable for its violation, rendering a discriminatory land

use regulation per se unlawful without regard to any

justifications supplied by the zoning authority. We address

each problem in turn.

1. Jurisdictional Nexus

The plain terms and structure of RLUIPA indicate that

the jurisdictional prerequisites included in § (a) and discussed

above do not apply to § (b)’s prohibition on discrimination

against and exclusion of religious institutions. First, § (a)(2)

specifically enumerates three jurisdictional tests, at least one

of which must be satisfied prior to § (a)(1)’s application,

while § (b) is silent as to jurisdictional tests. Second, § (a)(2),

by its terms, applies to “subsection” (a). See 42 U.S.C.

§ 2000cc(a)(2) (“This subsection applies in any case in which

[listing jurisdictional tests].”) (emphasis added). Finally, the

jurisdiction limits relate to burdens imposed by a

government—language which is consistent with § (a)(1)’s

prohibition on imposing a substantial burden without

justification. See id. at § 2000cc(a)(1) (“No government shall

impose or implement a land use regulation in a manner that

imposes a substantial burden on the religious exercise of a

person ....”) (emphasis added).

26a

Appendix A

Congress included the three jurisdictional limitations in

42 U.S.C. § 2000cc(a)(2) to satisfy the Supreme Court’s

concerns regarding congressional authority to enact

legislation protecting the free exercise of religion. See, e.g.,

City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (striking

down the Religious Freedom Restoration Act because it was

a “considerable congressional intrusion into the State’s

traditional prerogative and general authority to regulate”).

It was Congress’s belief that applying RLUIPA in these more

limited situations will alleviate federalism concerns raised

by earlier religious liberty legislation. See 146 CONG. REC.

S7774-01, *S7775 (2000) (joint statement of Sens. Hatch

and Kennedy on the Religious Land Use and Institutionalized

Person Act of 2000) (hereinafter “Joint Statement’).

As discussed above, the SZO imposes a system of

individualized assessments within the meaning of 42 U.S.C.

§ 2000cc(a)(2)(C), which requires that the burden be

“imposed in the implementation of a land use regulation or

system of land use regulations, under which a government

makes .. . individualized assessments of the proposed uses

for the property involved.” 42 U.S.C. § 2000cc(a)(2).

RLUIPA’s text and structure suggest that § (a)(2)’s threshold

jurisdictional test does not apply to § (b)’s equal terms

provision. While the application of a jurisdictional test to

§ (b) claims will provide fodder for future exercises in

statutory interpretation, we do not reach this question.

Because we find that the congregations allege conduct

satisfying the third jurisdictional prong of § (a)(2), we do

not reach the question of whether they are required to satisfy

this jurisdictional test.

27a

Appendix A

2. “Similarly Situated”

The parties assume that § (b) applies to assemblies and

institutions that are similarly situated in all relevant respects.

See, e.g., Cleburne, 473 U.S. at 439. Indeed, the district court

adopted this familiar “similarly situated” test when evaluating

the congregations’ claims. The district court concluded that

private clubs and other secular institutions are not similarly

situated to churches and synagogues because “private clubs

provid[e] more of a social setting [and] provide more synergy

for the shopping district in keeping with the purpose of

§ 90-152,” than churches and synagogues. Midrash Sephardi

v. Surfside, No. 99-1566-CIV-Ungaro-Benages/Brown, at 17

(S.D.Fla. July 13, 2000) (order granting partial summary

judgment). The district court also found that “churches,

synagogues, educational or philanthropic museums

(including museums), parking lots and garages, public and

governmental buildings and public utility/public services uses

are all Conditional uses ... [which] .. . fall within Justice

Harlan’s natural perimeter test,'? as this would apply to a

group of secular and non-secular uses that ‘are of a public or

semi-public character.’” Jd. (citing SZO § 90-41(a)).

Section (b)(1) makes it clear that the relevant “natural

perimeter” for consideration with respect to RLUIPA’s

prohibition is the category of “assemblies or institutions.”

The district court erred by not considering RLUIPA’s statutory

12. See Walz v. Tax Comm'n of New York City, 397 U.S. 664,

696 (Harlan, J., concurring) (“In any particular case the critical

question is whether the circumference of legislation encircles a class

so broad that it can be fairly concluded that religious institutions

could be thought to fall within the natural perimeter.”).

28a

Appendix A

“

categorization as the relevant “perimeter.” By adopting

Surfside’s conditional use definition" as the relevant “natural

perimeter,” the district court overlooked the express

provisions of RLUIPA which require a direct and narrow

focus. Under RLUIPA, we must first evaluate whether an

entity qualifies as an “assembly or institution,” as that term

is used in RLUIPA, before considering whether the

governmental authority treats a religious assembly or

institution differently than a nonreligious assembly or

institution. See 42 U.S.C.2000ce(b)(1).

Because RLUIPA does not define “assembly” or

“institution,” we construe these terms in accordance with

their ordinary or natural meanings. See Nat'l Coal Ass'n, 81

F.3d at 1081.

An “assembly” is “a company of persons collected

together in one place (usually] and usually for some common

purpose (as deliberation and legislation, worship, or social

entertainment),” WEBSTER’S 3D New IntT’L UNABRIDGED

Dictionary 131 (1993); or “[a] group of persons organized

and united for some common purpose.” BLACK’S Law

DicTIONARY 111 (7th ed.1999). An institution is “an

established society or corporation: an establishment or

foundation esp. of a public character,” WEBSTER’S 3D NEw

INt’L UNABRIDGED DicTIONARY 1171 (1993); or “lajn

~

13. Conditional uses, which include churches, synagogues,

educational institutions, museums, off-street parking lots and garages,

public and governmental buildings, and public utilities are “generally

of a public or semipublic character . . . but because of the nature of

the use and possible impact on neighboring properties, require the

exercise of planning judgment. . . ” §ZO § 90-41(a).

29a

Appendix A

established organization, esp. one of a public character. . . .”

BLack’s Law Dictionary 801 (7th ed.1999).

The SZO does not define the terms “church” or

“synagogue,” but does group them with “place(s] of

assembly.” See SZO § 90-226(b) (adopting regulations related

to parking spaces). According to the SZO, a private club is

“a building and facilities or premises, owned and operated

by a corporation, association, person or persons for social,

educational or recreational purposes, but not primarily for

profit and not primarily to render a service which is

customarily carried on as a business.” SZO § 90-2(20)

(emphasis added).

The SZO’s definition of private club comports with a

natural and ordinary understanding of “assembly” as a group

gathered for a common purpose. Like churches and

synagogues, private clubs are places in which groups or

individuals dedicated to similar purposes—whether social,

educational, recreational, or otherwise—can meet together

to pursue their interests. We conclude therefore that churches

and synagogues, as well as private clubs and lodges, fall

within the natural perimeter of “assembly or institution.”"*

Finding that private clubs and lodges are similarly situated

to churches and synagogues, we turn to whether under

RLUIPA, Surfside may treat them differently.

14. Indeed, the legislative history indicates that § (b)(1) was

intended to apply in precisely the situation presented here. See Joint

Statement, at *S7774 (“Zoning codes frequently exclude churches

in places where they permit theaters, meeting halls, and other places

where large groups of people assemble for secular purposes.”).

30a

Appendix A

3. Violation of § (b)

As noted above, the text of SZO § 90-152, which permits

private clubs and other secular assemblies, excludes religious

assemblies from Surfside’s business district. Because we have

concluded that private clubs, churches and synagogues fall

under the umbrella of “assembly or institution” as those terms

are used in RLUIPA, this differential treatment constitutes a

violation of § (b)(1) of RLUIPA.

4. Level of Scrutiny

The interested parties in this case disagree as to the

applicable level of scrutiny a law violating § (b) must

undergo. Surfside assumes that it may justify a violation of

§ (b) by demonstrating that the varying treatment of different

assemblies is rationally related to a legitimate purpose

advanced by Surfside—the so-called “rational basis” review.

The congregations argue that the ordinance must undergo

strict scrutiny: Surfside must demonstrate that its ordinance

is narrowly tailored to advance a compelling interest. Finally,

the United States submits that § (b)’s prohibition does not

allow a defendant to escape liability by providing a “rational

basis” or “compelling interest”—in effect, holding

government strictly liable a violation of § (b).

To clarify our analysis of a § (b) violation, we examine

the jurisprudential foundations for Congress’s enactment of

§ (b).

Mindful of the Supreme Court’s admonition that a

government would inhibit free exercise rights “if it sought

3la

Appendix A

to ban such acts of abstentions only when they are engaged

in for religious reasons,” Employment Div., Dept. of Human

Res. v. Smith, 494 U.S. 872, 877 (1990), Congress enshrined

similar non-discrimination principles in § (b)’s requirement

that religious and nonreligious assemblies or institutions be

treated equally. See Joint Statement, at *S7776 (“Sections [

(b)(1) and (2) ] ... enforce the Free Exercise Clause rule

against laws that burden religion and are not neutral and

generally applicable.”); H.R. Rep. No. 106-219, at 7 n.9

(1999).

Prior to Smith, the Supreme Court applied strict scrutiny

to cases in which a government discriminated against

religion or religious exercise. See, e.g., Thomas, 450 U:S. at

718 (“The state may justify an inroad on religious liberty by

showing that it is the least restrictive means of achieving

some compelling state interest.”); Wisconsin v. Yoder, 406

U.S. 205, 215 (4972) (“[O]nly those interests of the highest

order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion.”). While

Smith abrogated the application of strict scrutiny by

emphasizing that such review would not apply to neutral laws

of general applicability that incidentally burden religious

exercise, see id. at 879, the Court indicated that the

heightened standard of review would continue to apply where

a law fails to similarly regulate secular and religious conduct

implicating the same government interests. See id. at 886

n.3 (“[W]e strictly scrutinize governmental classifications

based on religion.”) (citations omitted). After Smith, it

remains true that a law that is not neutral or generally

applicable must undergo strict scrutiny. See id. at 879.

32a

Appendix A

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

presented an opportunity for the Supreme Court to elaborate

upon what was meant by neutrality and general applicability.

In examining a series of ordinances which had the effect of

proscribing ritualistic animal sacrifice by adherents of the

Santeria religion, the Court confirmed that the government

violates Free Exercise rights when it selectively imposes

burdens on religious conduct. 508 U.S. 520 (1993). Although

the Lukumi Court found the city’s proscription facially

neutral, the Court nevertheless concluded that the ordinances

violated principles of neutrality by improperly targeting the

Santeria religion. See id. at 534. Recognizing that the

ordinances were both underinclusive and overbroad, the

Court concluded that they were not neutral, but rather

“had as their object the suppression of religion.” Jd. at 542.

The Court also found that the ordinances were not generally

applicable because they pursued the city’s interests only

against conduct motivated by religious belief. Jd. at 545.

The Court then subjected the ordinances to strict scrutiny,

striking them down after determining that they were not

narrowly tailored to accomplish government’s interests, nor

were the governmental interests compelling. See id. at 546.

RLUIPA’s equal terms provision codifies the Smith-

Lukumi line of precedent. By requiring equal treatment of

secular and religious assemblies, RLUIPA allows courts to

determine whether a particular system of classifications

adopted by a city subtly or covertly departs from requirements

of neutrality and general applicability. A zoning law is not

neutral or generally applicable if it treats similarly situated

secular and religious assemblies differently because such

unequal treatment indicates the ordinance improperly targets

33a

Appendix A

the religious character of an assembly. Thus, a violation of

§ (b)’s equal treatment provision, consistent with the analysis

employed in Lukumi, must undergo strict scrutiny. /d.

Indeed, a closer look at § 90-152 reveals that Surfside

improperly targeted religious assemblies and violated Free

Exercise requirements of neutrality and general applicability.

While merely the mention of church or synagogue in a zoning

code does not destroy a zoning code’s neutrality, we must

nevertheless be mindful of the potential for impermissible

“religious gerrymanders,” which may render a zoning code

operatively non-neutral. Walz v. Tax Comm’n of New York

City, 397 U.S. 664, 696 (Harlan, J., concurring). As we have

noted, the text of § 90-152 treats religious assemblies

differently than secular assemblies by excluding religious

assemblies from the business district, a factor that is enough

to constitute a violation of § (b) of RLUIPA, and, as we

discuss below, also indicates an infringement of the Smith

principles of neutrality and general applicability. With respect

to neutrality, the purpose and operation of the ordinance

reveal an impermissible attempt to target religious

assemblies.

The purpose and operation of Surfside’s business district

is “to provide for retail shopping and personal service needs

of the town’s residents and tourists.” SZO § 90-152(a).

The regulations governing the business district are “intended

to prevent uses and activities which might be noisy, offensive,

obnoxious, or incongruous in behavior, tone or appearance

and which might be difficult to police.” Jd.

34a

Appendix A

Religious institutions, Surfside argues, are open only

once a week, usually on a day or at a time that other area

businesses are closed. Surfside maintains that the “central

use” of a religious institution is as a “single destination”

where congregants fill a “spiritual need” and then,

presumably, vacate the area. For these reasons, Surfside

contends that churches and synagogues do not cater to or

stimulate the shopping and retail needs of Surfside residents

in a way that comports with the objectives of the business

district. Private clubs, on the other hand, allegedly provide a

more “social” setting and promote “synergy” with the

shopping district because the nature of activity in a club or

lodge is entertainment."

The congregations provide evidence that they meet

throughout the week for purposes other than religious

services, including Torah classes and group discussion.

They aver that they hold social and entertainment gatherings,

albeit within the context of their religious and spiritual

mission. The congregations submit evidence suggesting that

members regularly patronize area shops before and after

services and meetings. The evidence also demonstrates that

the congregations themselves purchase food, paper, and other

15. Surfside does not define “synergy” but the evidence suggests

that Surfside’s primary concern was encouraging an increase in

consumer traffic in its business and tourist districts. While Surfside

suggests that allowing churches and synagogues will erode its tax

base and ultimately require a decrease in services offered by Surfside

to its residents, it does not devote much time to this argument. As

described below, § 90-152 is both over- and underinclusive with

respect to Surfside’s goal of synergy, no matter how that term is

defined.

35a

Appendix A

supplies from the businesses in the area. The presence of

synagogues has also led to the opening of kosher food

businesses in the area. This evidence indicates that § 90-152

is Overinclusive with respect to Surfside’s objectives of

promoting retail activity and synergy because the synagogues

contribute to the retail and commercial activity of the business

district.

Our review of the record indicates that § 90-152 is also

underinclusive for the interests Surfside seeks to advance.

The SZO’s definition of private clubs belies Surfside’s

argument that private clubs are “typical retail and service

activities” by indicating that private clubs are organizations

existing “for social, educational or recreational purposes, but

not primarily for profit and not primarily to render a service

which is customarily carried on as a business.” SZO § 90-

2(20). Moreover, permitted private clubs include

organizations that often meet weekly, monthly, or bi-monthly,

and sometimes during non-business hours—hours of

operation which fail to stimulate an increase in consumer

traffic to the business district. Other than conclusory

assertions that private clubs are more social than churches—

assertions disputed by evidence submitted by the

congregations—and that the increased sociability lends itself

to increased patronage of local establishments, Surfside

provides no evidence that private clubs and lodges actually

contribute to the business district in a way appreciably

different than religious institutions. Surfside’s stated goal of

retail synergy is pursued only against religious assemblies,

but not other non-commercial assemblies, thus devaluing the

religious reasons for assembling. Under Lukumi, this

discriminatory treatment extinguishes an ordinance’s

neutrality. See Lukumi, 508 U.S. at 538.

36a

Appendix A

As the evidence suggests, the synagogues are not

incongruous with the stated objectives and purposes of the

business district advanced by Surfside through the SZO. By

prohibiting religious assemblies in Surfside’s business

district, § 90-152 improperly targeted religious assemblies

for dissimilar treatment and is therefore, not neutral.'°

We turn to the second Free Exercise requirement that a

law burdening religious practice must be generally applicable.

Lukumi, 508 U.S. at 542. Surfside argues that the SZO places

restrictions not only on religious entities, but also on other

organizations, including educational institutions and

museums, off-street parking lots and garages, public and

governmental buildings, and public utilities.

Zoning laws inherently distinguish between uses and

necessarily involve selection and categorization, often

restricting religious assemblies to designated districts and

frequently requiring that religious assemblies complete a

conditional use application procedure. See id. at 542-43

(“All laws are selective to some extent . . . [but] inequality

results when a legislature decides that the governmental

16. We reject Surfside’s contention that the SZO is neutral

because there is no evidence of selective and discriminatory intent

against Orthodox Jews, a pattern of hostility or discriminatory animus

toward the synagogues, or evidence that Surfside directly targeted

religion in enacting the SZO. Under Lukumi, it is unnecessary to

identify an invidious intent in enacting a law—only Justices Kennedy

and Stevens attached significance to evidence of the lawmakers’

subjective motivation. See id. at 540-42 (Kennedy, J., concurring);

see also id. at 558 (Scalia, J., concurring in part and concurring in

judgment).

i

$

37a

Appendix A

interests it seeks to advance are worthy of being pursued only.

against conduct with a religious motivation.”).

Surfside’s treatment of synagogues as categorically

different because they have “[n]ever held a social, communal,

public service or other community affair event which is

unrelated to [their] religious and spiritual mission or

purpose “ clearly implicates the Supreme Court’s requirement

that governments should not treat secular motivations more

favorably than religious motivations. See generally id.; see

also Smith, 494 U.S. at 877. The operation of § 90-152 to

exclude religious assemblies because of their spiritual

mission is just one indication that Surfside improperly

excluded religious assemblies because of their religiosity.

Another indication is the underinclusiveness of § 90-152.

See Lukumi, 508 U.S. at 542-45 (concluding that because

the city’s ordinances pursued the city’s interests only against

religious conduct, the ordinances were not generally

applicable). The inclusion of private clubs in the business

district, which operate for “social, educational or recreational

purposes, but not »rimarily for profit and not primarily to

render a service which is customarily carried on as a

business,” see SZO § 90-2(20), is incompatible with

Surfside’s asserted goals of achieving maximum economic

benefit and the concentration and development of commercial

uses along Harding Avenue. See 1995-2000 Comprehensive

Plan. Because private clubs do not serve Surfside’s economic

and commercial goals but are nevertheless permitted in the

business district indicates that § 90-152 pursues Surfside’s

interests only against conduct motivated by religious belief.

38a

Appendix A

Including private clubs and lodges as permitted uses in

Surfside’s business district, while simultaneously excluding

religious assemblies, violates the principles of neutrality and

general applicability because private clubs and lodges

endanger Surfside’s interest in retail synergy as much or more

than churches and synagogues. Surfside’s failure to treat the

analogous groups equally indicates that Surfside improperly

targeted religious assemblies.

As demonstrated above, a violation of § (b)’s equal

treatment provision indicates that the offending law also

violates the Smith rule requiring neutrality and general

applicability. Consistent with the analysis employed in

Lukumi, a law violating § (b) must therefore undergo the

most rigorous of scrutiny. Cf. Fraternal Order of Police

Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366

(3d Cir.1999) (applying strict scrutiny to overturn regulation

that “indicat[ed] that the [government] made a value

judgment that secular (i.e., medical) motivations for wearing

a beard [were] important enough to overcome its general

interest in uniformity but that religious motivations [were]

not’).

We turn to whether Surfside, through the implementation

of the SZO, “‘advance[s] interests of the highest order” and

is narrowly tailored in pursuit of those interests. Lukumi, 508

U.S. at 546. As we have discussed, SZO § 90-152 is

overinclusive and underinclusive in substantial respects. The

proffered interests of retail synergy are not pursued against

analogous nonreligious conduct, and those interests could

be achieved by narrower ordinances that do not improperly

distinguish between similar secular and religious assemblies.

39a

Appendix A

Because § 90-152 treats religious institutions on less than

equal terms with nonreligious institutions, § 90-152 is invalid

under § (b)(1) of RLUIPA.” Finding that SZO § 90-152 is

not narrowly tailored to Surfside’s interest, we need not

address whether this interest is of “the highest order.”

See Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221,

232 (1987).

III. Constitutionality of RLUIPA

Surfside argues that if we find that the SZO violates

RLUIPA, such a finding is not dispositive because RLUIPA

is unconstitutional for three reasons: 1) RLUIPA exceeds

Congress’s power under § 5 of the Fourteenth Amendment;

2) RLUIPA establishes religion in violation of the First

Amendment; and 3) Congress lacked authority to pass

RLUIPA because RLUIPA infringes on state sovereignty

under the Tenth Amendment. The district court did not

17. This conclusion does not inhibit a zoning authority’s right

to adopt other reasonable “run of the mill” zoning regulations—such

as those related to size, parking, safety and health concerns—even

though such regulations may have the effect of distinguishing between

assemblies or institutions. For example, Surfside may regulate the

number of parking spaces required for each facility, see SZO § 90-

226, or restrict the size of assemblies or institutions, as the SZO _

does by prohibiting them on the first floor of buildings in the business

district. As long as restrictions or distinctions are unrelated to the

religious characterization, RLUIPA is not implicated. See also Joint

Statement, at *S7776 (“This Act does not provide religious

institutions with immunity from land use regulation, nor does it relieve

religious institutions from applying for variances, special permits or

exceptions, hardship approval, or other relief provisions in land use

regulations, where available without discrimination or unfair delay.”).

40a

Appendix A

address the constitutionality of RLUIPA, instead finding that

the congregations did not allege conduct that would invoke

its protections. After a brief review of RLUIPA’s statutory

and case law predecessors, we turn to Surfside’s contentions,

confining our analysis of RLUIPA’s constitutionality to the

provisions implicated by Surfside’s conduct. We conclude

that RLUIPA withstands our scrutiny and is a proper exercise

of Congress’s § 5 powers.

A. RLUIPA Background

In 1990, the Supreme Court decided Smith, which held

that the Free Exercise Clause of the First Amendment does

not exempt an individual from compliance with a valid and

neutral law of general applicability merely because the law

incidentally burdens religious conduct. See Smith, 494 U.S.

at 879. In response to Smith, Congress enacted the Religious

Freedom Restoration Act (“RFRA”), 107 Stat. 1488 (codified

at 42 U.S.C. §§ 2000bb et seq.). RFRA sought to rescind

Smith and restore what some refer to as the pre-Smith

standard: the “compelling interest/least restrictive means”

test found in Sherbert, 374 U.S. at 407-09, and Yoder, 406

U.S. at 214-15.

Four years later, the Supreme Court struck down RFRA

as it relates to state and local governments in City of Boerne

v. Flores, 521 U.S. 507 (1997). Congress may enforce

constitutional rights pursuant to § 5 of the Fourteenth

Amendment. However, in Boerne, the Supreme Court held

that by enacting RFRA, Congress had exceeded that authority

by defining rights instead of simply enforcing them. Boerne,

521 U.S. at 532. RLUIPA is a response to Boerne, becoming

4la

Appendix A

the latest congressional effort to offer statutory protection to

religious liberty. See H.R.Rep. No. 106-219, at 4

(commenting that “H.R. 1691 [RLUIPA’s legislative

predecessor] was introduced, in part, in response to the

Supreme Court’s partial invalidation of the Religious

Freedom Restoration Act... .”).

Congress sought, through RLUIPA, to protect religious

land uses from discriminatory processes used to exclude or

otherwise limit the location of churches and synagogues in

municipalities across the country. See Joint Statement, at

*S7774-S7775. As indicated during nine hearings held before

both houses of Congress, RLUIPA targets zoning codes which

use individualized and discretionary processes to exclude

churches, especially “new, small or unfamiliar churches . . .

[like] black churches and Jewish shuls and synagogues.” Jd.

at *S7774. The legislative record contained statistical,

anecdotal and testimonial evidence suggesting that

discrimination is widespread and typically results in the

exclusion of churches and synagogues even in places where

theaters, meeting halls and other secular assemblies are

permitted. Jd. at *S7774. According to RLUIPA co-sponsors

Senators Hatch and Kennedy:

The hearing record compiled massive evidence

that [the right to build, buy, or rent space for

churches and synagogues] is frequently violated.

Churches in general, and new, small or unfamiliar

churches in particular, are frequently

discriminated against on the face of zoning codes

and also in the highly irdividualized and

discretionary processes of land use regulation.

Id. at *S$7774.

42a

Appendix A

RLUIPA features two primary means of addressing these

perceived infringements on religious liberty. RLUIPA revives

RFRA’s substantial burden test, confining the reach of this

test to land use regulations that first pass jurisdictional

muster. RLUIPA also contains § (b), a wholly new provision

directed at zoning codes that discriminate against, or among

religious institutions or unreasonably limit religious

institutions in a jurisdiction. See 42 U.S.C. § 2000cc(b). As

discussed above, SZO § 90-152 vioiates § (b)(1) of RLUIPA.

B. Fourteenth Amendment

Surfside first argues that by enacting RLUIPA, Congress

exceeded its power under § 5 of the Fourteenth Amendment

“to enforce, by appropriate legislation, the provisions of this

article.” U.S. Const. amend. XIV, § 5.

The Supreme Court has characterized Congress’s power

under § 5 of the Fourteenth Amendment as “remedial.” South

Carolina v. Katzenbach, 383 U.S. 301, 326 (1966). As the

Court noted in Boerne:

The design of the Amendment and the text of § 5

are inconsistent with the suggestion that Congress

has the power to decree the substance of the

Fourteenth Amendment’s restrictions on the

States.... Congress does not enforce a

constitutional right by changing what the right is.

It has been given the power “to enforce,” not the

power to determine what constitutes a

constitutional violation. Were it not so, what

Congress would be enforcing would no longer be,

43a

Appendix A

in any meaningful sense, the “provisions of [the

Fourteenth Amendment].”

Boerne, 521 U.S. at 519.

Neither party disputes, nor is there reason to doubt, that

RLUIPA purports to protect certain religious liberties

guaranteed by the First Amendment. In determining whether

RLUIPA is an appropriate exercise of Congress’s § 5 power,

we must first determine whether Congress has the authority

to enact legislation to enforce the rights guaranteed by the

First Amendment. See Boerne, 521 U.S. at 519. Boerne

answered this question in the affirmative. See id.; see also

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding

that the “fundamental concept of liberty embodied in [the

Fourteenth Amendment’s Due Process Clause] embraces the

liberties guaranteed by the First Amendment”).

The second inquiry under Boerne is whether RLUIPA

“enforces” a constitutional right without substantively

altering that right. See id. One way in which we determine

whether § 5 legislation enforces a right is by evaluating

whether the legislation is congruent and proportional to the

injury to be prevented or remedied. /d. at 520. Under Boerne,

preventative measures are more likely to withstand scrutiny

if they prohibit actions that themselves have “a significant

likelihood of being unconstitutional.” /d. at 532. Thus,

according to Boerne, if RLUIPA merely codifies existing

constitutional principles, it is an acceptable use of Congress’s

§ 5 remedial tool.'*

18. As discussed above, SZO § 90-152 violates § (b) of

RLUIPA, which also indicates that § 90-152 is neither neutral nor

(Cont'd)

_ 44a

Appendix A

When conducting this analysis, we accord “great weight

to the decisions of Congress,” Columbia Broad. Sys., inc. v.

Democratic Nat'l Comm., 412 USS. 94, 102(1973), and give

Congress “wide latitude” in enacting preventative or remedial

measures. Boerne, 521 U.S. at 520. As Justice Frankfurter

has noted, courts must give “due regard to the fact that [they

are] not exercising a primary judgment but [are] sitting in

judgment upon those who also have taken the oath to observe

the Constitution and who have the responsibility for carrying

on government.” Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123, 164 (1951) (Frankfurter, J.,

concurring). The customary deference accorded the

judgments of Congress is certainly appropriate when, as here,

Congress has specifically considered the question of the law’s

constitutionality. See Rotsker v. Goldberg, 453 U.S. 57,

64(1981).

The United States argues that RLUIPA is a reasonable

means of protecting the non-discrimination principles

embodied in the Free Exercise and the Establishment Clauses

of the First Amendment, as well as the Equal Protection

Clause of the Fourteenth Amendment.

A survey of Free Exercise cases indicates that

government action that specifically targets religion or

religious conduct for distinctive treatment can be an

impermissible intrusion on an individual’s free exercise

rights. See Lukumi, 508 US. at 534 (“Official action that

(Cont'd)

generally applicable. Because § 90-152 fails these two Free Exercise

requirements, it has a

unconstitutional.”

‘

‘significant likelihood of being

45a

Appendix A

targets religious conduct for distinctive treatment cannot be

shielded by mere compliance with the requirement of facial

neutrality.... ‘[We] must survey meticulously the

circumstances of governmental categories to eliminate, as it

were, religious gerrymanders.’”’) (quoting Walz, 397 U.S. at

696 (Harlan, J., concurring)); McDaniel v. Paty, 435 US.

618 (1978) (invalidating law that disqualified members of

the clergy from holding certain public offices); Fowler v.

Rhode Island, 345 U.S. 67, 69-70 (1953) (invalidating law

which discriminated among religious sects). In Lukumi, the

Supreme Court reaffirmed the principle that free exercise

rights must be protected against laws that selectively impose

burdens on conduct motivated by religious belief. See

Lukumi, 508 U.S. at 543; see also Hobbie, 480 U.S. at 146

(overturning state decision to withhold unemployment

compensation to an employee who refused to work on her

Sabbath as violative of Free Exercise rights); FOP, 170 F.3d

at 366-67 (holding that a police department policy prohibiting

beards but allowing a medical exemption violated the

nondiscrimination principles of the Free Exercise Clause).

The Establishment Clause mandates equal treatment of

religious and secular assemblies based on the converse

theory: the government may not favor the religious over non-

believers because such favoritism would amount to an

impermissible establishment of religion. See, e.g., Gillette

v. United States, 401 U.S. 437, 450 (1971) (“[T]he

Establishment Clause prohibits government from abandoning

secular purposes. . . to favor adherents of any sect or religious

organization.”). The Supreme Court has consistently

disapproved of unequal treatment that elevates religion over

secular interests. See generally Texas Monthly, Inc. v. Bullock,

46a

Appendix A

489 U.S. 1 (1989) (striking down law exempting only

religious publications from taxation); Engel v. Vitale, 370

U.S. 421 (1962) (striking down state-sponsored prayers),

see also Bd. of Educ. of Kiryas Joel Village Sch. Dist. Vv.

Grumet, 512 U.S. 687, 704 (1994) (stating that “civil power

must be exercised in a manner neutral to religion”); Zorach

vy. Clauson, 343 U.S. 306, 314 (1952) (stating that

Government may not “prefer[] those who believe in no

religion over those who do believe”). This bar to unequal

treatment is also the fundamental point of Lemon v. Kurtzman,

403 U.S. 602 (1971), which held that the Establishment

Clause requires that the “principal or primary effect [of

governmental action] must be one that neither advances nor

inhibits religion.” Jd. at 612.

In short, the equal treatment required by the two Religion

Clauses serves to protect individuals from encroachments

on the right to freely engage in religious exercise, and offers

protection from government action that impermissibly favors

religion.

Finally, the Equal Protection Clause mandates that no

state shall “deny to any person within its jurisdiction the equal

protection of the laws,” U.S. CONST. AMEND. XIV, § 1, cl. 4,

which provides support for § (b) by “direct[ing] that all

persons similarly situated should be treated alike.” Cleburne,

473 US. at 439.

In Cleburne, the Supreme Court reviewed a city’s land

use regulation that distinguished between homes for persons

with mental disabilities from multiple dwellings, boarding

and lodging houses, fraternity or sorority houses, and

“47a

Appendix A

dormitories. Cleburne held that the difference between a

group home and these other uses was irrelevant unless the

group home and its occupants “would threaten legitimate

interests of the city in a way that other permitted uses such

as boarding houses and hospitals would not.” /d. at 448. By

employing an equal protection analysis to examine whether

a law applies equally to similarly situated assemblies or

institutions, courts can ferret out laws that are facially neutral

but discriminate in fact. See Lukumi, 508 US. at 540.

We agree with Justice O’Connor’s observation that “the

Religion Clauses—the Free Exercise Clause, the

Establishment Clause, the Religious Test Clause, . . . and the

Equal Protection Clause as applied to religion—all speak with

one voice on this point: Absent the most unusual

circumstances, one’s religion ought not affect one’s legal

rights or duties or benefits.” Kiryas Joel, 512 U.S. at 715

(O’Connor, J., concurring). On the face of RLUIPA’s equal

terms provision, the echoes of these constitutional principles

are unmistakable. Simply put, to deny equal treatment to a

church or a synagogue on the grounds that it conveys religious

ideas is to penalize it for being religious. Such unequal

treatment is impermissible based on the precepts of the Free

Exercise, Establishment and Equal Protection Clauses.

Congress’s power is certainly not without limits, but we

find that Congress’s findings regarding the widespread

discrimination against religious institutions are plausible and

provide a basis for concluding that RLUIPA remedies and

prevents discriminatory land use regulations. See United

States v. Holmes, 838 F.2d 1175, 1177 (11th Cir.1988)

(“[W]here a statute does not discriminate on racial grounds

48a

Appendix A

or against a suspect class, Congress’[s] judgment will be

sustained in the absence of persuasive evidence that Congress

had no reasonable basis for drawing the lines that it did.”).

RLUIPA tailors the nondiscrimination prohibitions

annunciated above to land use regulations because Congress

identified a significant encroachment on the core First and

Fourteenth Amendment rights of religious observers. Because

§ (b)(1) of RLUIPA codifies existing Free Exercise,

Establishment Clause and Equal Protection rights against

states and municipalities that treat religious assemblies or

institutions “on less than equal terms” than secular

institutions, § (b) is an appropriate and constitutional use of

Congress’s authority under § 5 of the Fourteenth Amendment.

C. Establishment Clause

We turn to Surfside’s contention that RLUIPA

impermissibly elevates religion in a manner contravening the

' Establishment Clause.

At its core, Surfside’s argument implicates the

intersection of both religious liberties principles found in

the First Amendment—the right to free exercise of religion

and the prohibition against establishment of religion.

As courts strive for a “benevolent neutrality” toward religion

that allows religious exercise to exist without either

endorsement or interference, they do so with the recognition

that the two Religion Clauses, “both of which are cast in

absolute terms,” would, if taken to their logical extremes,

“tend to clash with [each] other.” Walz, 397 U.S. at 668-69.

When deciding these cases, courts are sometimes forced to

enter the debate about whether the Free Exercise Clause

49a

Appendix A

allows exemptions from burdensome laws, see, e.g., Corp.

of the Presiding Bishop of the Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987)

(upholding a law which granted religious employers an

exemption from compliance with Title VII’s protection

against religious discrimination), or whether the

Establishment Clause prohibits such exemptions, either on

the grounds that an exemption impermissibly discriminates

against the nonreligious, see e.g., Texas Monthly, 489 U.S.

at 9 (plurality opinion) (government “may not place its

prestige, coercive authority, or resources behind a single

religious faith or behind religious belief in general ...

conveying the message that those who do not contribute

gladly are less than full members of the community”), or on

the grounds that the exemption impermissibly advances

religion. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 593

(1987) (striking down Louisiana’s Creationism Act because

it impermissibly endorses religion).

The three-part test provided by Lemon helps determine

whether a statute achieves neutrality towards religion by

avoiding “sponsorship, financial support, and active

involvement of the sovereign in religious activity.” 403 U.S.

at 612 (quoting Walz, 397 U.S. at 668). A statute will survive

an Establishment Clause attack if 1) it has a secular legislative

purpose, 2) its primary effect neither advances nor inhibits

religion, and 3) it does not foster excessive government

entanglement with religion. /d. at 612-13.'° “State action

19. The Supreme Court has acknowledged that Lemon ‘s second

and third prongs are often interrelated and the simplest way of

evaluating whether a statute results in impermissible entanglement

(Cont'd)

50a

Appendix A

violates the Establishment Clause if it fails to satisfy any of

these prongs.” Edwards, 482 U.S. at 583.

1. Purpose

Lemon first requires that the law at issue serve a “secular

legislative purpose.” 403 U.S. at 612. The Supreme Court

has upheld statutes that “alleviate significant governmental

interference with the ability of religious organizations to

define and carry out their religious missions.” Amos, 483

US. at 335, 107 S.Ct. 2862; see also Hobbie, 480 U.S. at

144-45, 107 S.Ct. 1046 (noting that “the government may

(and sometimes must) accommodate religious practices ...

without violating the Establishment Clause’). In requiring

neutrality toward religion, the government need not be

“oblivious to impositions that legitimate exercises of state

power may place on religious belief and practice,” Kiryas

Joel, 512 U.S. at 705, nor must the “government show a

callous indifference to religious groups.” Zorach, 343 US.

at 314. Where, as here, a law’s purpose 1s to alleviate

significant government interference with the exercise of

religion, that purpose does not violate the Establishment

Clause.

(Cont’d)

is to assess it using the same factors used to examine the “effect”

prong. See Agostini v. Felton, 521 U.S. 203, 232-33 (1997).

Evaluating Lemon ‘s second and third prongs together or separately

does not affect our analysis; for purposes of clarity, we evaluate each

separately.

Sla

Appendix A

2.. Effect

The second requirement under Lemon is that the law in

question have a “principal or primary effect . . . that neither

advances nor inhibits religion.” 403 U.S. at 612. The Supreme

Court has said that “[a] law is not unconstitutional simply

because it allows churches to advance religion. . . . For a law

to have forbidden ‘effects’ under Lemon, it must be fair to

say that the government itself has advanced religion through

its own activities and influence.” Amos, 483 U.S. at 337.

We find unpersuasive Surfside’s argument that the

application of RLUIPA’s equal terms provision gives an

impermissible special preference to religious interests. Amos

makes it clear that a law does not violate the Establishment

Clause simply because it lifts burdens imposed on religious

: institutions without affording similar benefits to secular

entities. 483 U.S. at 338 (“[W]e see no reason to require that

the [burden-alleviating] exemption comes packaged with

benefits to secular entities.”). Moreover, contrary to

Surfside’s assertions, RLUIPA does not allow religious

assemblies to avoid the application of zoning regulations.

RLUIPA does not impose affirmative duties on states that

would require them to facilitate or subsidize the exercise of

religion. RLUIPA instead calls for exactly the opposite—

forbidding states from imposing impermissible burdens on

religious worship.

For purposes of analyzing the second prong of Lemon, a

relevant and meaningful distinction exists between statutes

whose effect is to advance religion and statutes whose effect

is to allow religious organizations to advance religion.

52a

Appendix A

See Amos, 483 U.S. at 336-337; Kiryas Joel, 512 U.S. at 719

(O’Connor, J., concurring). RLUIPA, by mandating equal as

opposed to special treatment for religious institutions, does

not advance religion by making it easier for religious

organizations themselves to advance religion.

3. Entanglement

Under Lemon ‘s third prong, 4 statute must not result in

excessive entanglement between church and state. 403 U.S.

at 613. RLUIPA does not require “pervasive monitoring”

to prevent the government from indoctrinating religion.

See Agostini, 521 U.S. at 233. RLUIPA does not call on the

government to supervise land use regulations to make sure

governmental funds do not sponsor religious practice, nor

does it require state or local officials to develop expertise on

religious worship or to evaluate the merits of different

religious practices OF beliefs. RLUIPA requires only that

states avoid discriminating against or among religious

institutions. As such, RLUIPA passes muster under Lemon’s

third prong.

That the Constitution’s prohibition of the “establishment

of religion” also allows—and sometimes mandates—equal

treatment of religion seems obvious. Equal treatment

maintains the separation of church and state by keeping the

government separate from people’s decisions about religion,

while ensuring that the government does not “make []

adherence to religion relevant to é person’s standing in the

political community.” Wallace, 472 U.S. at 69 (O’Connor,

J., concurring in judgment), see also Kiryas Joel, 512 US.

at 715 (O’Connor, J., concurring in part and concurring in

53a

Appendix A

judgment); County of Allegheny v. ACLU, 492 U.S. 573, 626

(1989) (O’Connor, J., concurring in part and concurring in

judgment). Because RLUIPA accommodates religion by

remedying and preventing discriminatory zoning in

accordance with principles established by the First and

Fourteenth Amendments, RLUIPA does not violate the

Establishment Clause.”°

D. Tenth Amendment

Finally, we reject the argument that in enacting RLUIPA,

Congress violated the Tenth Amendment, which provides that

20. Surfside’s argument that RLUIPA violates the Establishment

Clause echoes Justice Stevens’ concurring opinion in Boerne, which

indicated his belief that RFRA violated the Establishment Clause

because the statute “provided the Church with a legal weapon that

no atheist or agnostic can obtain.” Boerne, 521 U.S. at 536-37

(Stevens, J., concurring). Many circuits have held that RFRA

continues to apply to the federal government. See Kikumura v. Hurley,

242 F.3d 950, 959-60 (10th Cir.2001); Jn re Young, 141 F.3d 854,

863 (8th Cir.1998); Mockaitis v. Harcleroad, 104 F.3d 1522, 1530

(9th Cir.1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir.1996),

vacated on other grounds, 521 U.S. 1114 (1997); EEOC v. Catholic

Univ. of Am., 83 F.3d 455, 470 (D.C.Cir.1996); Flores v. City of

Boerne, 73 F.3d 1352, 1364 (Sth Cir.1996), rev'd on other grounds,

521 U.S. 507 (1997). While we have not had occasion to decide this

question for ourselves, the implication is that if RFRA were

constitutionally infirm on Establishment Clause grounds as applied

to the states, there would be no principled way to exempt the federal

government from the same infirmity. Although we are evaluating

RLUIPA’s equal terms provision, which, unlike the substantial burden

provision, does not have roots in RFRA, we note that the Boerne

majority declined to adopt Justice Stevens’ view of the Establishment

Clause.

54a

Appendix A

“(t]he powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.” U.S. Const.

amend. X. Although RLUIPA intrudes to some degree on local

land use decisions, RLUIPA does not violate principles of

federalism if it is otherwise grounded in the Constitution.

See New York v. United States, 505 U.S. 144, 156 (1992).

Because RLUIPA is a proper exercise of Congress’s power

under § 5 of the Fourteenth Amendment, there is no violation

of the Tenth Amendment.

Moreover, RLUIPA must not “compel the States to enact

or enforce a federal regulatory program.” Printz v. United

States, 521 U.S. 898, 935 (1997); New York, 505 U.S. at 175-

77, 188. While RLUIPA may preempt laws that discriminate

against or exclude religious institutions entirely, it leaves

individual states free to eliminate the discrimination in any

way they choose, so long as the discrimination is actually

eliminated. See Fed. Energy Regulatory Comm n Vz

Mississippi, 456 U.S. 742, 759 (1982) (“[T]he Federal

government may displace state regulation even though this

serves to ‘curtail or prohibit the States’ prerogatives to make

legislative choices respecting subjects the States may consider

important.”) (citation omitted); City of Rome v. United States,

446 U.S. 156, 179 (1980) (contemplating Fourteenth

Amendment’s interference with state rights); Gregory V.

Ashcroft, 501 U.S. 452, 468 (1991) (same).

RLUIPA’s core policy is not to regulate the states or

compel their enforcement of a federal regulatory program,

but to protect the exercise of religion, a valid exercise of

55a

Appendix A

Congress’s § 5 power under the Fourteenth Amendment,

which does not run afoul of the Tenth Amendment’s

protection of the principles of federalism.

Conclusion

For the foregoing reasons, we find that § 90-152 of the

SZO violates § (b)(1) of RLUIPA. We REVERSE the

decision of the district court, and REMAND for further

proceedings consistent with this opinion.

56a

APPENDIX B — FINAL JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA DATED JULY 8, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 99-1 566-CIV-UNGARO-BENAGES

Magistrate Judge Brown

THIS IS A CONSENT CASE

MIDRASH SEPHARDI, et al.,

Plaintiffs,

VS.

TOWN OF SURFSIDE,

Defendant.

FINAL JUDGMENT

Pursuant to Rule 58, Fed. R Civ. P., and consistent with

the Court’s Order pursuant to Rule 54(h), Fed. R Civ. P.,

Final Judgment is entered against Plaintiffs MIDRASH

SEPHARDI, INC. and, YOUNG ISRAEL OF BAL

HARBOUR, INC., on Counts 1 through 7 of their Third

Amended Complaint, and in favor of Defendant as to Count

1 of the Counterclaim, and pursuant to Federal Rule 54(b),

as to Count 2 of the Counterclaim seeking injunctive relief.

SPD TA Le TL Ce

57a

Appendix B

DONE and ORDERED this day of July, 2003 Miami,

Florida.

s/ Stephen T. Brown

STEPHEN T. BROWN

U.S. MAGISTRATE JUDGE

58a

APPENDIX C — ORDER PURSUANT TO RULE 54(b)

DIRECTING ENTRY OF FINAL JUDGMENT AS TO

ALL OF THE PLAINTIFFS’ CLAIMS AND

DEFENDANT’S COUNTERCLAIM FOR DECLARA-

TORY AND INJUNCTIVE RELIEF OF THE UNITED

STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA DATED JULY 8, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 99-1 566-CIV-UNGARO-BENAGES

Magistrate Judge Brown

THIS IS A CONSENT CASE

MIDRASH SEPHARDI, et al.,

Plaintiffs,

VS.

TOWN OF SURFSIDE,

Defendant.

ORDER PURSUANT TO RULE 54(b) DIRECTING

ENTRY OF FINAL JUDGMENT AS TO ALL OF THE

PLAINTIFFS’ CLAIMS AND DEFENDANT’S

COUNTERCLAIM FOR DECLARATORY AND

INJUNCTIVE RELIEF

Pursuant to Rule 54(b), Federal Rules of Civil Procedure,

the Court hereby directs the entry of a Final Judgment in

Defendant’s favor on all of Plaintiffs’ claims in the Third

59a

Appendix C

Amended Complaint. This Final Judgment is entered as to

all the claims of the Plaintiffs for the reasons set forth in the

Court’s Orders of DE# 215, 295, 296, 317, 335 and 215.

The Final Judgment is also entered in favor of Defendant

as to Counts I and II of Defendant’s Counterclaim, except

for the portion of Count Ii of the Counterclaim seeking civil

penalties and attorneys’ fees for the Plaintiffs’ violations of

the Code of the Town of Surfside. There is no just reason to

delay the entry of a Final Judgment on all of the claims

presented by the Third Amended Complaint and the

Counterclaims, other than the Counterclaims for civil

penalties and attorneys’ fees.

DONE and ORDERED this day of July, 2003 at Miami,

Florida.

s/ Stephen T. Brown

STEPHEN T. BROWN

U.S. MAGISTRATE JUDGE

60a

APPENDIX D — ORDER GRANTING INJUNCTIVE

RELIEF AND ENTERING PERMANENT INJUNCTION

AGAINST PLAINTIFFS OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA DATED JULY 8, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 99-1566-CIV-UNGARO-BENAGES

Magistrate Judge Brown

THIS IS ACONSENT CASE

MIDRASH SEPHARDI, et al.,

Plaintiffs,

VS.

TOWN OF SURFSIDE,

Defendant.

ORDER GRANTING INJUNCTIVE RELIEF AND

ENTERING PERMANENT INJUNCTION

AGAINST PLAINTIFFS

THIS MATTER is before the Court on Defendant Town

of Surfside’s Counterclaim for Injunctive Relief. This Court

has reviewed the Counterclaim, and all pertinent materials

in the file.' The Court adopts the findings and rulings made

1. Plaintiff’s did not file an answer to the Counterclaims raised

in response to the Plaintiffs’ original and Third Amended Complaint.

- (Cont’d)

6la

Appendix D

in its Second Amended Order on Motion for Reconsideration

entered June 5, 2003, and supplements those findings and

rulings as follows.

This Court has granted summary judgment as to the

injunctive relief requested in Count II of the Counterclaim.

~ In doing so, the Court makes the following findings of fact

and conclusions of law:

1. The Defendant, Town of Surfside (“Surfside”), seeks

a permanent injunction enjoining the Plaintiffs, Midrash

Sephardi, Inc. and Young Israel of Bal Harbour, Inc. (referred

to jointly as “Plaintiffs”) from violating Surfside’s municipal

ordinances, including but not limited to, having Plaintiffs

cease and desist any further actions that constitute violations

of Chapter 90 of the Town Code, including prohibiting

Plaintiffs from operating synagogues or houses of worship

at locations in the Town of Surfside’s B-1 Business District

and RT-1 Tourist District, including at 9592 Harding Avenue

and 9501 Collins Avenue.

2. The requirements for issuance of a permanent

injunction, all of which the Defendant has established, are:

A. The injunction is necessary to prevent

irreparable harm and there is an unavailability

of an adequate remedy at law;

B. Success on the merits;

Appendix D

C. The threatened injury to the movant

outweighs any possible harm the injunction

would inflict on the non-movant; and

D. The granting of a permanent injunction will

serve the public interest.

3. Plaintiff’s have admitted that by locating in the tourist

and business districts, they violated, and continue to be in

violation of, Surfside’s zoning code see Notice of Filing

(summarizing admissions)). The Court has, in prior Orders,

found the pertinent Ordinances and Surfside’s zoning scheme

to be constitutional and enforceable. Accordingly, Defendant

is now entitled to injunctive relief. See Metropolitan Dade

County v. O’Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995)

(“Where the government seeks an injunction in order to

enforce its police power, any alternative legal remedy is

ignored and irreparable harm is presumed.” (citations

omitted)).

4. The Plaintiffs’ violations of the foregoing municipal

ordinances outweigh any individual right the Plaintiffs may

claim to have. An injunction does not prevent the Plaintiffs

from complying with the law, but rather serves the public

interest in preventing the Plaintiffs’ continuing violations of

law in the B-1 Business and RT-1 Tourist Districts in

Surfside.

5. The granting of a permanent injunction in favor of

Surfside will serve the public interest in preventing violations

of law. The balance of harms also weighs in favor of granting

injunctive relief for Surfside. No damage or harm will result

63a

Appendix D

to the plaintiffs by granting injunctive relief. Any alleged

damage or harm is solely within the Plaintiffs’ control and

ability to remedy. The injunction will protect public health,

safety or welfare and, on balance, the harm to Surfside and

the public if injunctive relief is not granted will far outweigh

the harm to the Plaintiffs if an injunction is granted.

6. The Plaintiff’s received fair notice and an opportunity

to be heard.

Accordingly, it is ORDERED and ADJUDGED as

follows:

A permanent injunction, effective ninety (90) days from

the date of this Order, is entered against Plaintiffs, Midrash

Sephardi, Inc. and Young Israel of Bal Harbour, Inc., jointly

and severally, and each of their officers, directors, agents,

heirs, successors, or assigns, enjoining and restraining them

from directly or indirectly occupying or operating synagogues

or houses of worship at locations in the Town of Surfside’s

B-I Business District and RT-1 Tourist District, and at 9592

Harding Avenue, Surfside, Florida or 9501 Collins Avenue,

Surfside, Florida, or maintaining, or permitting the operation,

use or occupancy by any person of the property in such

manner.

DONE and ORDERED this 8th day of July, 2003 at

Miami, Florida.

s/ Stephen T. Brown

Stephen T. Brown

U.S. MAGISTRATE JUDGE

64a

APPENDIX E — SECOND AMENDED ORDER AND

AMENDED ORDER ON MOTION FOR RECONSID-

ERATION OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF

FLORIDA DATED MAY 19, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-1566-CIV-UNGARO-BENAGES/BROWN

MIDRASH SEPHARDI, et al.,

Plaintiffs,

vs.

TOWN OF SURFSIDE,

Defendant.

SECOND AMENDED ORDER ON MOTION

FOR RECONSIDERATION

THIS MATTER is before this Court on Defendant Town

of Surfside’s Motion for Reconsideration, filed April 4, 2003.

This Court has reviewed the motion, the responses, the reply,

and all pertinent materials in the file. The Court adopts the

findings and rulings made in its Amended Order on Motion

for Reconsideration, issued May 19, 2003, and supplements

those findings and rulings as follows.

—_ Sa MES acm ome ao SRE EERIE RIES EEE SESE PEON LES EEE EN LN SIOEY Sc iS SS MP RR RS IES EEG RIS PEO NO I REESE RAE Tie tS RC ED . ax "

65a

Appendix E

In its Motion for Reconsideration, Surfside included a

request that this Court reconsider its prior ruling denying its

Motion for Summary Judgment on Surfside’s Counterclaims,

filed August 2, 2000, with respect to Count II, which states:

WHEREFORE, Surfside requests this Court issue

an injunction ordering Midrash and Young Israel

to cease and desist any further actions which

constitute violations of Chapter 90 of the Code,

including Midrash and Young Israel from

operating synagogues or houses of worship or

other similar activities at 9592 Harding Avenue

and 9501 Collins Avenue. Surfside further

demands judgment in its favor for civil penalties

up to $1,000 per day, plus the costs of this action,

and attorneys’ fees pursuant to Sections 1-8 and

90-3 of the Code.

In its Amended Order, this Court reconsidered its prior

ruling denying Defendant’s Motion for Summary Judgment

on Count VII of the Third Amended Complaint, and found

that there were no genuine issues of material fact as to that

claim, the only remaining claim raised by Plaintiff in this

action. Accordingly, the Court granted the Defendant’s

Motion for Summary Judgment as to Count VII in its entirety.

When this Court initially denied the Defendant’s Motion for

Summary Judgment as to Count VII, it also, in a separate

Order, denied Defendant’s Motion for Summary Judgment

on Surfside’s Counterclaims, filed August 2, 2000, based on

the fact that it had found issues of fact with respect to Count

VII. Now that the Court has reconsidered that ruling and

granted summary judgment to Defendant on all counts of

66a

Appendix E

Plaintiff’s Third Amended Complaint, the Court finds that

Defendant is entitled to partial summary judgment on its

Counterclaim, to the extent that it requests injunctive relief.’

Plaintiffs did not file an answer to the Counterclaims

raised in response to the Plaintiffs’ original and Third

Amended Complaints. Plaintiffs did serve a Reply to the

Counterclaims raised in response to the Second Amended

Complaint, however, that Reply apparently was never filed

in the court record. Defendant has attached a copy of

Plaintiff’s Reply to its Notice of Filing List of Court

Documents Containing Plaintiffs’ Admissions Regarding

Surfside’s Counterclaims for Injunctive Relief, Penalties and

Attorneys’ Fees, filed May 30, 2003 (“Notice of Filing”).

Viewing this matter in the light most favorable to Plaintiffs,

and considering their Reply with respect to the most recently

filed Counterclaims, it is clear that Defendant is entitled to

summary judgment as to injunctive relief at this point in the

proceedings. =

Plaintiffs have admitted that by locating in the tourist

and business districts, they violated, and continue to be in

violation of, Surfside’s zoning code (see Notice of Filing

(summarizing admissions)). The Court has, in prior Orders,

found the pertinent Ordinances and Surfside’s zoning scheme

to be constitutional and enforceable. Accordingly, Defendant

is now entitled to injunctive relief. See Metropolitan Dade

County v. O’Brien, 660 So. 2d 364, 365 (Fla. 3d DCA 1995)

1. The Court notes that in their memorandum in response to

Defendant’s Motion for Summary Judgment as to the counterclaims,

Plaintiffs failed to respond to Defendant’s argument that it is entitled

to injunctive relief.

67a

Appendix E

(“Where the government seeks an injunction in order to

enforce its police power, any alternative legal remedy is

ignored and irreparable harm is presumed.” (citations

omitted)). All that remains for determination by the Court as

to this issue is the form of the order.”

Accordingly, it is ORDERED and ADJUDGED as

follows:

1. Defendant’s Motion for Reconsideration is hereby

GRANTED as to Defendant’s Counterclaims.

2. Defendant’s Motion for Summary Judgment on

Surfside’s Counterclaims is hereby GRANTED, in part, as

to the request for injunctive relief in Count II.

DONE AND ORDERED this Sth day of June, 2003 at

Miami, Florida.

s/ Stephen T. Brown

STEPHEN T. BROWN

U.S. MAGISTRATE JUDGE

2. A hearing on this issue is being set by separate order.

68a

Appendix E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-1566-CIV-UNGARO-BENAGES/BROWN

MIDRASH SEPHARDI, et al.,

Plaintiffs,

VS.

TOWN OF SURFSIDE,

Defendant.

AMENDED ORDER ON MOTION

FOR RECONSIDERATION’

THIS MATTER is before this court on Defendant Town

of Surfside’s Motion for Reconsideration, filed April 4, 2003.

This court has reviewed the motion, the responses, the reply,

and all pertinent materials in the file.

The motion at issue concerns the single remaining claim

in this action - Plaintiffs’ allegation that §§ 90-151 and 90-152

of the Surfside Zoning Code violate the Equal Terms

provision of RLUIPA, § 2(b)(1), in that they allow private

clubs and other secular places of public assembly in the

tourist and business districts, but disallow churches and

synagogues. In its prior Order dated January 2, 2003, this

Court denied Defendant’s Motion for Summary Judgment

on this single claim, and granted the motion as to the other

alleged violations of RLUIPA.

1. The Court has added one citation on page 8.

69a

Appendix E

FACTS

This Court thoroughly set forth the facts of this case and

discussed the Ordinances at issue in its Order Re: Final

Summary Judgment dated July 13, 2000 (hereinafter referred

to as “7/13/00 Order”); and its Order on Motions for

Summary Judgment with respect to Count VII, dated January

2, 2003 (1/2/03 Order). This Court adopts the findings of

fact contained therein.

DISCUSSION?

Defendant argues that the Court’s Order must be

reconsidered because it is inconsistent with certain findings

the Court previously made in the 7/13/00 Order, and because

the record demonstrates no triable issues of fact.

I. Discriminatory Purpose

——e

Defendant initially argues that there can be no violation

of §2(b)(1) of RLUIPA because in the 7/13/00 Order the Court

ruled that Plaintiffs failed to prove that there was a

discriminatory purpose in the City’s enactment of the

Ordinances at issue. The Court rejects this argument, because

although an equal protection violation based on a facially

neutral statute requires a showing that “the defendant

unequally applied the facially neutral statute for the purpose

of discriminating against the plaintiff,” see Strickland v.

Alderman, 74 F.3d 260, 264 (11th Cir. 1996), in Count VII

2. This Court adopts its prior discussion of the standards

applicable on a motion for summary judgment.

70a

Appendix E

Plaintiffs allege that §§ 90-151 and 90-152 are discriminatory

on their face. The analysis to be applied in determining

whether facially discriminatory legislation constitutes an

equal protection challenge does not require independent

evidence of discriminatory intent. See, e.g., City of Cleburne,

Tex. v. Cleburne Living Center, 473 U.S. 432 (1985).

Rather; the analysis is whether the City can show a

rational reason for the differential treatment of the Plaintiff's

and similarly situated non-religious entities. If not, an equal

protection violation exists. To the extent that the Court

previously found that Surfside’s zoning scheme was faciaily

neutral, the Court there performed a Free Exercise of religion

analysis, and found, in sum, that because regulating the

location of churches is not regulating religious beliefs, the

ordinance scheme did not present a Free Exercise violation

on its face. To the extent, however, that §§ 90-151 and 90-152

do not allow religious institutions, but yet allow certain other

similarly situated uses, they are not facially neutral for

proposes of an Equal Protection analysis. Accordingly, the

Court finds that its prior Order is not inconsistent and that

no reconsideration is necessary as to this issue. For the same

reason, there is nothing inconsistent with the Court’s previous

ruling and the concept that RLUIPA codifies existing Equal

Protection law.’

3. Although the Court did apply the two prong facially neutral

analysis in its Order on Motion for Summary Judgment addressed to

the equal protection claim raised in Count V, that claim concerned

the City’s alleged discriminatory enforcement of violations of its C ode

(i.e., violation of facially neutral legislation).

UU

7la

Appendix E

Il. Similarly Situated

Defendant next argues that Court has already ruled that

the Plaintiffs are not similarly situated to private clubs or

other secular institutions that are allowed to locate in the

business and tourist districts. Defendant relies on the Court’s

finding that

[t]he text of the Ordinance provides that churches,

synagogues, educational or philanthropic institutions

(including museums), parking lots and garages,

public and governmental buildings and public utility/

public service uses are all Conditional Uses .. .

[which] ... fall within Justice Harlan’s natural

perimeter test, as this would apply to a group of

secular and non-secular uses that “are of a public or

semi-public character” §90-41(a).

7/13/00 Order p. 17. The Court also found, relative to “the

ostensible purpose of B-1 to provide for the retail and personal

service needs of the Town’s residents and tourists,” that

“(p]rivate clubs provid[e] more ofa social setting, provide more

synergy for the shopping district in keeping with the purpose of

§ 90-152,” than churches and synagogues. Jd.

Plaintiff correctly notes that the initial finding pertained

to Plaintiff’s Free Exercise challenge to the City’s conditional

use requirement for houses of worship. The Court agrees with

Defendant, however, that the second finding, as further

discussed below, does support Defendant’s Motion for

Summary Judgment on the Equal Terms claim.

72a

Appendix E

III. Rational Basis Analysis

Defendant argues that even if Plaintiffs can prove that

they are similarly situated to other uses allowed in the

business and tourist districts, there is no issue of fact

regarding whether the City has demonstrated a rational basis

to distinguish between houses of worship and these other

uses, to support their exclusion. Defendant points to the

deposition testimony of expert witness Jack Luft, a

professional planner who testified, in sum, that generally

houses of worship do not contribute to the economic vitality

of these districts, in the manner that the other uses do. Mr.

Lull contrasted the principal activity of houses of worship,

“a spiritual pursuit,” to that of social clubs or lodge halls

which are “social organization[s].” Mr. Luft also discussed

his opinion that churches and synagogues do not belong in

the business and tourist districts because they fail to satisfy

the need to optimize “cross-shopping behavior”:

Part of it has to do with the size of the institutions.

Part of it has to do with parking patterns. Part of

it has to do with the varied disruption to the fabric

of the retail district by any institution, church or

school or governmental office that breaks the

pattern of a tightly — of acompact, cohesive retail

district. So part of it is a use issue, part of itis a

physical impact issue, part of it is a functional-

issue of parking. There’s several factors that come

together. (Luft depo. pp. 30-31).

P )

I can tell you that I’m aware of circumstances

where churches, synagogues, schools and

73a

Appendix E

government buildings, all of which are of the

institutional type and greatly similar in their

types of use activity, have been placed within

commercial districts and have caused enormous

disruption and, in fact, have killed off significant

portions of retail areas because of the disruption

that they’ve caused.

And what the Town of Surfside has done, it has

said that schools, not traffic schools which are a

peculiar office type of use, but public schools,

private school, schools as we normally define

schools, government buildings and churches and

Synagogues and houses of worship generally are

not permitted within the business district. And

they’ve drawn that line and they’ve kept it to a

collection of businesses that are traditionally

defined as retail and retail services. And they’ve

done that to preserve the integrity of the fabric of

the district, and the Master Plan reflects that goal

and policy quite clearly. It simply states that they

shall maintain a compact and cohesive retail

district, and you cannot control either the size or

the habits of the people that go to these types of

institutions. What you can reliably predict is that,

on the average, they will be less of a contributor

to the district than a retail use will. een depo.

pp. 48-49.)

The nature of the activity as a spiritual pursuit

and typical times that they do that and the typical

ways that worshipers interact with activities

74a

Appendix E

around them is, on the whole, far less related to

the nature of a commercial district than broad

social entertainment activities, group socializing.

(Luft depo. p. 62.)

The typical [religious] experience is once a week,

and it is typical, during a weekday, and there is

virtually no one there. There’s virtually no activity

there, and it is the net sum of that empty space

and that typical lack of activity that is the

detriment to a retail district that depends on a

high degree of activity and a high degree of

traffic during normal business hours. (Luft depo.

pp. 63-64).

Most churches [sit] largely empty and unused

during the weekdays. That’s typical now. And it’s

that impact which you cannot control and I cannot

control. (Luft depo p. 64)

In opposition to this testimony, Plaintiffs offer the

affidavits of Rabbi Chaim Casper, of Young Israel. Rabbi

Casper states, in pertinent part:

8. Synagogue worship services on the Sabbath

(Friday evening, Saturday morning and evenings)

and holidays include, without limitation, religious

prayer, song, Torah readings, sermons, group

discussions, required festivities, celebration of

religious events and religious study. During the

tourist season, Young Israel conducts daily

rooming, afternoon and evening prayer services

75a

Appendix E

and Torah study classes Wednesday evenings and

on the Sabbath.

9. During the tourist season, attendance at Young

Israel synagogue services increases dramatically

and virtually triples due to the seasonal tourist

population on the Collins Avenue oceanfront,

seasonal tourist population on Jewish holidays,

and at times on the Sabbath, due to its small size.

Young Israel relies heavily on tourists and

seasonal residents for large attendance and

financial support.

15. Surf Florist generates most of its retail sales

from the three towns of Surfside, Bal Harbour and

Bay Harbour Islands, with the majority coming

from Bar Harbour residents. I also routinely

witness my customers from Bal Harbour and Bay

Harbor Islands frequent other retail and service

establishments in Surfside’s business district.

16. ... I have had many customers coming

Straight from the synagogue to purchase flowers

after services and I personally witness daily

congregants going to the kosher bakery or grocery

store shipping after morning services (except

Saturday when it is prohibited).

Affidavit of Chaim Casper, filed February 23, 2003.

76a

Appendix E

Rabbi Nissim Elnecave of Plaintiff Midrash Sephardi

states, inter alia:

23. ... First, most Jewish synagogues are

generally open for services daily; mornings,

afternoons and evenings. Second, most Muslim

mosques are open for daily prayer five times a

day. Third, most churches of different Christian

denominations I have known in my lifetime,

particularly Catholic churches, are open for mass

— or services daily.

25. ... First, our members, especially attendees

at daily morning services and bible and Halacha

study classes, regularly frequent the shops before

or after attending the synagogue, as do I.

26. Second, every Sabbath and Jewish holiday,

Midrash provides meals after services and bagel

and lox breakfasts every Sunday morning. All our

food, paper and other supplies are purchased at

the Hyde Market, Kastners and Eckerds — stores

in the Surfside business district.

27. Third, since Orthodox synagogues have

opened in Surfside, the business district has a

kosher bakery and a full-service kosher food and

bakery counter which do robust business... .

Affidavit of Nissim Elnecave, filed February 23, 20U3.

77a

Appendix E

Plaintiffs claim that Defendant is not entitled to summary

judgment based on Cornerstone Bible Church v. City of

Hastings, 948 F.2d 464 (8th Cir. 1991). In that case, the

Eighth Circuit noted that the district court failed to deal with

the “vital inquiry” as to “whether the City has a rational basis

to differentiate between the Church and the entities it permits

in the C-3 zone,” and that “[a]ny differentiation must be

relevant to the objectives the City is attempting to achieve

through its ordinance.” Jd. at 471. The Court stated:

The City is excluding the Church because it will

not generate economic activity, but the Church has

established a relevant similarity between itself and

permitted non-commercial entities. It is now

incumbent on the City to provide the rational basis

for this apparent unequal treatment of similarly

situated entities. The City has failed to support

its exclusion of the Church with any justification

beyond the conclusory statements in the affidavits

of the city planners. (Citation omitted) (Emphasis

added).

Id. at 471-72.

In this case, Defendant has supported its differential

treatment of houses of worship through the expert testimony

of a professional planner who served for eleven years on the

Design Review Board of Miami Beach. Mr. Luft testified

that in rendering his opinion, in addition to reviewing relevant

documentation, he performed a “windshield survey” of the

community, had discussions with the City manger regarding

current developments and the state of the real estate market,

78a

Appendix E

did photo surveys, walked in the shops, and spoke with

shopkeepers about business and conditions in the area. Luft

depo. pp. 6-8.

Although there may be exceptions to the statements by

Mr. Luft, the Court finds that this testimony supports a finding

that the ordinances do not violate the Equal Terms clause.

The Supreine Court has reiterated that “where rationality is

the test, a State ‘does not violate the Equal Protection Clause

merely because the classifications made by its laws are

imperfect.’” Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307, 316 (1976) (citing Dandridge v. Williams, 397 U.S.

471, 485 (1970)). Rather, government action should not be

overturned unless “the varying treatment of different groups

or persons is so unrelated to the achievement of any

combination of legitimate purposes that we can only conclude

that the government’s actions were irrational.” Kimel v.

Florida Board of Regents, 528 US. 62, 86 (2000). In Kimel,

which concerned an alleged equal protection violation based

on age, in applying a rational basis review the Court noted

that “[oJur Constitution permits States to draw lines on the

basis of age when they have a rational basis for doing so ata

class-based level, even if it ‘is probably not true’ that those

reasons are valid in the majority of cases.” /d. at 86 (citing

Gregory v. Ashcroft, 501 U.S. 452, 473 (1991)).

Under the rational basis standard, “a classification ‘must

be upheld against equal protection challenge if there is any

reasonable conceivable state of facts that could provide a

rational basis for the classification.’” Nyugen v. Immigration

and Naturalization Service, 533 U.S. 53, 77 (2001) (citing

Hefer v. Doe, 509 US. 312, 320 (1993) (quoting FCC v.

79a

Appendix E

Beach Communications, 508 U.S. 307, 313 (1993)). In such

a determination, as opposed to a heightened scrutiny analysis,

the court is allowed “to hypothesize interests that might

support legislative distinctions.” Jd. at 77; see also Joel v.

City of Orlando, 232 F.3d 1353, 1358 (11th Cir. 2000) (“The

proper inquiry is concerned with the existence of a

conceivably rational basis, not whether that basis was actually

considered by the legislative body. As long as reasons for

the legislative classification may have been considered to be

true, and the relationship between the classification and the

goal is not so attenuated as to render the distinction arbitrary

or irrational, the legislation survives rational basis scrutiny.”)

(quoting Haves v. City of Miami, 52 F.3d 918, 921-22 (11th

Cir. 1995) (emphasis in original)). Furthermore, the Eleventh

Circuit has stated that under the rational basis test, “a court

gives great deference to economic and social legislation.”

Gary v. City of Warner Robins, 311 F.3d 1334 (11th Cir.

2002).

Upon reconsideration of the record, the Court finds that

the City has demonstrated that there is no triable issue of

fact_concerning whether the zoning classifications in

§§ 90-151 and 90-152 of the Surfside Zoning Code violate

the equal terns provision of RLUIPA. The testimony provided

by the Rabbis as to the practices of other houses of worship

is without foundation and constitutes hearsay. With respect

to their statements regarding their own houses of worship,

even accepting that testimony as true does not create an

element of irrationality in the City’s zoning decisions, in that

the Court must examine the general categories of uses which

the City chose to treat differently for zoning purposes.

Plaintiffs have offered no competent evidence, in the way of

80a

Appendix E

expert testimony or otherwise, to counter the testimony of

Mr. Luft that on a general scale, certain uses (including houses

of worship) do not enhance the City’s legitimate goal.

Because the Court finds that the City has demonstrated that

these classifications are rationally related to the City’s stated

purpose of increasing the economic vitality of the business

and tourist districts, Defendant is entitled to summary

judgment on this claim as well.

IV. Conclusion

Based on the foregoing analysis, it is ORDERED and

ADJUDGED as follows:

1. Defendant Town of Surfside’s Motion for

Reconsideration is hereby GRANTED.

2. Defendant’s Summary Judgment on Plaintiffs’ Third

Amended Complaint’s “Seventh Claim for Relief’ is hereby

GRANTED as to all claims that Surfside’s zoning code

violates RLUIPA.

3. Plaintiff's Motion-for Summary Judgment on Count

VII of the Third Amended Complaint remains DENIED in

all respects.

DONE AND ORDERED this 19th day of May, 2003 at

Miami, Florida.

s/ Stephen T. Brown

STEPHEN T. BROWN

U.S. MAGISTRATE JUDGE _

8la

APPENDIX F — ORDER ON MOTION FOR

RECONSIDERATION OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA DATED MAY 13, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-1566-CIV-UNGARO-BENAGES/BROWN

MIDRASH SEPHARDI, et al.,

Plaintiffs,

vs.

TOWN OF SURFSIDE,

Defendant.

ORDER ON MOTION FOR RECONSIDERATION

THIS MATTER is before this court on Defendant Town

of Surfside’s Motion for Reconsideration, filed April 4, 2003.

This court has reviewed the motion, the responses, the reply,

and all pertinent materials in the file.

The motion at issue concerns the single remaining claim

in this action — Plaintiffs’ allegation that §§ 90-151 and

90-152 of the Surfside Zoning Code violate the Equal Terms

provision of RLUIPA, § 2(b)(1), in that they allow private

clubs and other secular places of public assembly in the

tourist and business districts, but disallow churches and

Synagogues. In its prior Order dated January 2, 2003, this

82a

Appendix F

Court denied Defendant’s Motion for Summary Judgment

on this single claim, and granted the motion as to the other

alleged violations of RLUIPA.

FACTS

This Court thoroughly set forth the facts of this case and

discussed the Ordinances at issue in its Order Re: Final

Summary judgment dated July 13, 2000 (hereinafter referred

to as “7/13/00 Order”), and its Order on Motions for

Summary Judgment with respect to Count VII, dated January

2, 2003 (1/2/03 Order). This Court adopts the findings of

fact contained therein.

DISCUSSION'

Defendant argues that the Court’s Order must be

reconsidered because it is inconsistent with certain findings

the Court previously made in the 7/13/00 Order, and because

the record demonstrates no triable issues of fact.

I. Discriminatory Purpose

Defendant initially argues that there can be no violation

of § 2(b)(1) of RLUIPA because in the 7/13/00 Order the

Court ruled that Plaintiffs failed to prove that there was a

discriminatory purpose in the City’s enactment of the

Ordinances at issue. The Court rejects this argument, because

although an equal protection violation based on a facially

1. This Court adopts its prior discussion of the standards

applicable on a motion for summary judgment.

83a

Appendix F

neutral statute requires a showing that “the defendant

unequally applied the facially neutral statute for the purpose

of discriminating against the plaintiff,” see Strickland v.

Alderman, 74 F.3d 260, 264 (11th Cir. 1996), in Count VII

Plaintiffs allege that §§ 90-151 and 90-152 are discriminatory

on their face. The analysis to be applied in determining

whether facially discriminatory legislation constitutes an

equal protection challenge does not require independent

evidence of discriminatory intent. See, e.g., City of Cleburne,

Tex. v. Cleburne Living Center, 473 U.S. 432 (1985).

Rather, the analysis is whether the City can show a

rational reason for the differential treatment of the Plaintiffs

and similarly situated non-religious entities. If not, an equal

protection violation exists. To the extent that the Court

previously found that Surfside’s zoning scheme was facially

neutral, the Court there performed a Free Exercise of religion

analysis, and found, in sum, that because regulating the

location of churches is not regulating religious beliefs, the

ordinance scheme did not present a Free Exercise violation

on its face. To the extent, however, that §§ 90-151 and 90-152

do not allow religious institutions, but yet allow certain other

similarly situated uses, they are not facially neutral for

purposes of an Equal Protection analysis. Accordingly, the

Court finds that its prior Order is not inconsistent and that

no reconsideration is necessary as to this issue. For the same

reason, there is nothing inconsistent with the Court’s previous

ruling and the concept that RLUIPA codifies existing Equal

Protection law.’

2. Although the Court did apply the two prong facially neutral

analysis in its Order on Motion for Summary Judgment addressed to

(Cont’d)

84a

Appendix F

Il. Similarly Situated

Defendant next argues that Court has already ruled that

the Plaintiffs are not similarly situated to private clubs or

other secular institutions that are allowed to locate in the

business and tourist districts. Defendant relies on the Court’s

finding that

[t]he text of the Ordinance provides that churches,

synagogues, educational or philanthropic

institutions (including museums), parking lots and

garages, public and governmental buildings and

public utility/public service uses are all

Conditional Uses ... [which] ... fall within

Justice Harlan’s natural perimeter test, as this

would apply to a group of secular and non-secular

uses that “are of a public or semi-public character”

§ 90-41(a).

7/13/00 Order p. 17. The Court also found, relative to

“the ostensible purpose of B-1 to provide for the retail and

personal service needs of the Town’s residents and tourists,”

that “[p]rivate clubs provid[e] more of a social setting,

provide more synergy for the shopping district in keeping

with the purpose of § 90-152,” than churches and synagogues.

Id.

Plaintiff correctly notes that the initial finding pertained

(Cont'd)

the equal protection claim raised in Count V, that claim concerned

the City’s alleged discriminatory enforcement of violations of its Code

(i.e., violation of facially neutral legislation).

85a

Appendix F

to Plaintiff's Free Exercise challenge to the City’s conditional

use requirement for houses of worship. The Court agrees with

Defendant, however, that the second finding, as further

discussed below, does support Defendant’s Motion for

Summary Judgment on the Equal Terms claim.

III. Rational Basis Analysis

Defendant argues that even if Plaintiffs can prove that

they are similarly situated to other uses allowed in the

business and tourist districts, there is no issue of fact

regarding whether the City has demonstrated a rational basis

to distinguish between houses of worship and these other

uses, to support their exclusion. Defendant points to the

deposition testimony of expert witness Jack Luft, a

professional planner who testified, in sum, that generally

houses of worship do not contribute to the economic Vitality

of these districts, in the manner that the other uses do.

Mr. Luft contrasted the principal activity of houses of

worship, “a spiritual pursuit,” to that of social clubs or lodge

halls which are “social organization[s].” Mr. Luft also

discussed his opinion that churches and synagogues do not

belong in the business and tourist districts because they fail

to satisfy the need to optimize “cross-shopping behavior”:

Part of it has to do with the size of the institutions.

Part of it has to do with parking patterns. Part of

it has to do with the varied disruption to the fabric

of the retail district by any institution, church or

school or governmental office that breaks the

pattern of a tightly — of a compact, cohesive retail

district. So part of it is a use issue, part of it is a

io

86a

Appendix F

physical impact issue, part of it is a functional

issue of parking. There’s several factors that come

together. (Luft depo. pp. 30-31).

I can tell you that I’m aware of circumstances

where churches, synagogues, schools and

government buildings, all of which are of the

institutional type and greatly similar in their

types of use activity, have been placed within

commercial districts and have caused enormous

disruption and, in fact, have killed off significant

portions of retail areas because of the disruption

that they’ ve caused.

And what the Town of Surfside has done, it has

said that schools, not traffic schools which are a

peculiar office type of use, but public schools,

private school, schools as we normally define

schools, government buildings and churches and

synagogues and houses of worship generally are

not permitted within the business district. And

they’ve drawn that line and they’ve kept it to a

collection of businesses that are traditionally

defined as retail and retail services. And they’ve

done that to preserve the integrity of the fabric of

the district, and the Master Plan reflects that goal

and policy quite clearly. It simply states that they

shall maintain a compact and cohesive retail

district, and you cannot control either the size or

the habits of the people that go to these types of

institutions. What you can reliably predict is that,

on the average, they will be less of a contributor

to the district than a retail use will. (Luft depo.

87a

Appendix F

pp. 48-49.)

The nature of the activity as a spiritual pursuit

and typical times that they do that and the typical

ways that worshipers interact with activities

around them is, on the whole, far less related to

the nature of a commercial district than broad

social entertainment activities, group socializing.

(Luft depo. p. 62.)

The typical [religious] experience is once a week,

and it is typical .. . during a weekday, and there

is virtually no one there. There’s virtually no

activity there, and it is the net ~am of that empty

space and that typical lack of activity that

is the detriment to a retail district that depends on

a high degree of activity and a high degree of

traffic during normal business hours. (Luft depo.

pp. 63-64). eee Wins ae

Most churches [sit] largely empty and unused

during the weekdays. That’s typical now. And it’s

that impact which you cannot control and I cannot

control. (Luft depo p. 64)

In opposition to this testimony, Plaintiffs offer the

affidavits of Rabbi Chaim Casper, of Young Israel. Rabbi

Casper states, in pertinent part:

8. Synagogue worship services on the Sabbath

(Friday evening, Saturday morning and evenings)

and holidays include, without limitation, reli gious

88a

Appendix F

prayer, song, Torah readings, sermons, group

discussions, required festivities, celebration of

religious events and religious study. During the

tourist season, Young Israel conducts daily

morning, afternoon and evening prayer services

and Torah study classes Wednesday evenings and

on the Sabbath.

9. During the tourist season, attendance at Young

Israel synagogue services increases dramatically

and virtually triples due to the seasonal tourist

population on the Collins Avenue oceanfront,

seasonal tourist population on Jewish holidays,

and at times on the Sabbath, due to its small size.

Young Israel relies heavily on tourists and

seasonal residents for large attendance and

financial support.

15. Surf Florist generates most of its retail sales

from the three towns of Surfside, Bal Harbour and

Bay Harbour Islands, with the majority coming

from Bal Harbour residents. I also routinely

witness my customers from Bal Harbour and Bay

Harbor Islands frequent other retail and service

establishments in Surfside’s business district.

16. ... I have had many customers coming

straight from the synagogue to purchase flowers

after services and I personally witness daily

congregants going to the kosher bakery or grocery

store shipping after morning services (except

Saturday when it is prohibited).

89a

Appendix F

Affidavit of Chaim Casper, filed February 23, 2003.

Rabbi Nissim Elnecave of Plaintiff Midrash Sephardi

states, inter alia:

23. ... First, most Jewish Synagogues are

generally open for services daily; mornings,

afternoons and evenings. Second, most Muslim

mosques are open for daily prayer five times a

day. Third, most churches of different Christian

denominations I have known in my lifetime,

particularly Catholic churches, are open for mass

or services daily.

25. ... First, our members, especially attendees

at daily morning services and bible and Halacha

study classes, regularly frequent the shops before

or after attending the synagogue, as do I.

26. Second, every Sabbath and Jewish holiday,

Midrash provides meals after services and bagel

and lox breakfasts every Sunday morning. All our

food, paper and other supplies are purchased at

the Hyde Market, Kastners and Eckerds — stores

in the Surfside business district.

27. Third, since Orthodox synagogues have

opened in Surfside, the business district has a

kosher bakery and a full-service kosher food and

bakery counter which do robust business. . . .

90a

Appendix F

Affidavit of Nissim Elnecave, filed February 23, 2003.

Plaintiffs claim that Defendant is not entitled to summary

judgment based on Cornerstone Bible Church v. Cite of

Hastings, 948 F.2d 464 (8th Cir.1991). In that case, the Eighth

Circuit noted that the district court failed to deal with the

“vital inquiry” as to “whether the City has a rational basis to

differentiate between the Church and the entities it permits

in the C-3 zone,” and that “[a]ay differentiation must be

relevant to the objectives the City is attempting to achieve

through its ordinance.” Jd. at 471. The Court stated:

The City is excluding the Church because it will

not generate economic activity, but the Church has

established a relevant similarity between itself and

permitted non-commercial entities. It is now

incumbent on the City to provide the rational basis

for this apparent unequal treatment of similarly

situated entities. The City has failed to support

its exclusion of the Church with any justification

beyond the conclusory statements in the affidavits

of the city planners. (Citation omitted) (Emphasis

added).

Id. at 471-72.

In this case, Defendant has supported its differential

treatment of houses of worship through the expert testimony

of a professional planner who served for eleven years on the

Design Review Board of Miami Beach. Mr. Luft testified

that in rendering his opinion, in addition to reviewing relevant

documentation, he performed a “windshield survey” of the

9la

Appendix F

community, had discussions with the City manger regarding

current developments and the state of the real estate market,

did photo surveys, walked in the shops, and spoke with

shopkeepers about business and conditions in the area.

Luft depo. pp. 6-8.

Although there may be exceptions to the statements by

Mr. Luft, the Court finds that this testimony supports a finding

that the ordinances do not violate the Equal Terms clause.

The Supreme Court has reiterated that “[W]here rationality

is the test, a State ‘does not violate the Equal Protection

Clause merely because the classifications made by its laws

are imperfect.’” Massachusetts Bd. of Retirement v. Murgia,

427 U.S. 307, 316 (1976) (citing Dandridge v. Williams, 397

U.S. 471 , 485 (1970). Rather, government action should not

be overturned unless “the varying treatment of different

groups or persons is so unrelated to the achievement of any

combination of legitimate purposes that we can only conclude

that the government’s actions were irrational.” Kimel v.

Florida Board of Regents, 528 U.S. 62, 86 (2000). In Kimel,

which concerned an alleged equal protection violation based

on age, in applying a rational basis review the Court noted

that “[oJur Constitution permits States to draw lines on the

basis of age when they have a rational basis for doing so ata

class-based level, even if it ‘is probably not true’ that those

reasons are valid in the majority of cases.” Jd. at 86 (citing

Gregory v. Ashcroft, 501 U.S. 452, 473 (1991).

Under the rational basis standard, “a classification ‘must

be upheld against equal protection challenge if there is any

reasonable conceivable state of facts that could provide a

rational basis for the classification.’” Nyugen v. Immigration

92a

Appendix F

and Naturalization Service, 533 U.S. 53, 77 (2001) (citing

Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting FCC v.

Beach Communications, 508 U.S. 307, 313 (1993). In such

a determination, as opposed to a heightened scrutiny analysis,

the court is allowed “to hypothesize interests that might

support legislative distinctions.” /d. at 77, see also Joel v.

City of Orlando, 232 F.3d 1353, 1358 (11th Cir. 2000)

(“The proper inquiry is concerned with the existence of a

conceivably rational basis, not whether that basis was actually

considered by the legislative body. As long as reasons for

the legislative classification may have been considered to be

true, and the relationship between the classification and the

goal is not so attenuated as to render the distinction arbitrary

or irrational, the legislation survives rational basis scrutiny.’”’)

(quoting Haves v. City of Miami, 52 F.3d 918, 921-22

(11th Cir. 1995)) (emphasis in original).

Upon reconsideration of the record, the Court finds that

the City has demonstrated that there is no triable issue of

fact concerning whether the zoning classifications in

§§ 90-151 and 90-152 of the Surfside Zoning Code violate

the equal terms provision of RLUIPA. The testimony

provided by the Rabbis as to the practices of other houses of

worship is without foundation and constitutes hearsay.

With respect to their statements regarding their own houses

of worship, even accepting that testimony as true does not

create an element of irrationality in the City’s zoning

decisions, in that the Court must examine the general

categories of uses which the City chose to treat differently

for zoning purposes. Plaintiffs have offered no competent

evidence, in the way of expert testimony or otherwise, to

counter the testimony of Mr. Luft that on a general scale,

93a

Appendix F

certain uses (including houses of worship) do not enhance

the City’s legitimate goal. Because the Court finds that the

City has demonstrated that these classifications are rationally

related to the City’s stated purpose of increasing the economic

vitality of the business and tourist districts, Defendant is~

entitled to summary judgment on this claim as well.

IV. Conclusion

Based on the foregoing analysis, it is ORDERED and

ADJUDGED as follows:

1. Defendant Town of Surfside’s Motion for

Reconsideration is hereby GRANTED.

2. Defendant’s Summary Judgment on Plaintiffs’ Third

Amended Complaint’s “Seventh Claim for Relief’ is hereby

GRANTED as to all claims that Surfside’s zoning code

violates RLUIPA.

3. Plaintiff s Motion for Summary Judgment on

Count VII of the Third Amended Complaint remains

DENIED in all respects. |

DONE AND ORDERED this 13th day of May, 2003 at

Miami, Florida.

s/ Stephen T. Brown

STEPHEN T. BROWN

U.S. MAGISTRATE JUDGE

94a

APPENDIX G — ORDER ON MOTION FOR

SUMMARY JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA DATED JANUARY 3, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-1566-CIV-UNGARO-BENAGES/BROWN

MIDRASH SEPHARDI, et al.,

Plaintiffs,

VS.

TOWN OF SURFSIDE,

Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS MATTER is before this court on Defendant Town

of Surfside’s Motion for Summary Judgment on Count V of

Plaintiffs’ Second Amended Complaint; Motion for Summary

Judgment on Surfside’s Counterclaims, filed August 2, 2000.

This court has reviewed the motion, the response, the reply,

and all pertinent materials in the file. In addition, a hearing was

held on June 25, 2001. This Court adopts the transcript of that

hearing by reference herein.

The motion at issue concerns Plaintiffs’ Fifth Claim for Relief

(Free Exercise and Equal Protection as Applied). This Court

has thoroughly set forth the facts of this case and discussed the

95a

Appendix G

Ordinances at issue in its prior Order Re: Final Summary

Judgment dated July 13, 2000 and its Order on Motions for

Summary Judgment dated January 2, 2003. This Court adopts

the findings of fact and conclusions of law contained therein, and

adds the following pertinent facts.

FACTS

Plaintiffs base their equal protection as applied claim-on the

following allegation:

121. Inallowing the Mogen David Congregation to

operate in violation of the Zoning Code for

33 years in a single family residential zoning

district in which synagogues are not permitted,

but enforcing the same zoning prohibition against

Midrash and Young Israel, who were and are

similarly situated, the defendant has engaged in

the selective enforcement of the law among different

religious groups, thereby infringing on plaintiffs’ rights

to be treated alike, as guaranteed by the Free

Exercise Clause of the First Amendment and the Equal

Protection Clause of the Fourteenth Amendment to

the. . . United States Constitution.

Third Am. Complt. ¥ 121.

96a

Appendix G

DISCUSSION '

In order to prove an equal protection claim based on a

facially neutral statute Plaintiffs must establish that: (1) they

were treated differently than similarly situated persons, and

(2) Surfside unequally applied the facially neutral statute for

the purpose of discriminating against Plaintiffs. See

Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996).

The Court finds that Plaintiffs nave failed to establish that

there is an issue of fact as to either prong.

I. Similarly Situated Persons

As noted by the Eleventh Circuit, “[d]ifferent treatment

of dissimilarly situated persons does not violate the Equal

Protection Clause.” Jd. at 265 (citing E & T Realty v.

Strickland, 830 F.2d 1107, 1109 (11th Cir. 1987)). Plaintiffs

argue that they are similarly situated to the Mogen David

Congregation. The Court finds that Plaintiffs have failed to

meet their burden for two reasons.

First, it is undisputed that Mogen David Congregation

is, and has been, located in a residential district, whereas

Plaintiffs are now located in the business district, with

Plaintiff Young Israel having formerly been located in the

tourist district. The fact that the three congregations are

located in different zones, which serve different zoning

interests, prevents them from being considered to be

“similarly situated” for purposes of determining whether

Surfside’s enforcement of its zoning laws was discriminatory.

1. This Court adopts its prior discussion of the standards

applicable on a motion for summary judgment.

97a

Appendix G

The Court can envision circumstances in which the type of zone

in which an entity is located could dictate whether a city would

choose to allow a nonconforming use.

Moreover, the affidavits submitted by the parties reveal that

there are other significant differences between Plaintiffs and

Mogen David Congregation, with respect to congregation size

and use of facilities. Because of this, Surfside is not “enforcing

the same zoning prohibition” against Plaintiffs and Mogen David

Congregation. For the foregoing reasons, the Court finds that

Plaintiff cannot show that they are similarly situated to the Mogen

David Congregation.

II. Evidence of Discrimination

The United States Supreme Court has stated that for

purposes of an equal protection violation, “a discriminatory

purpose is not presumed,” and that “there must be a showing

of ‘clear and intentional discrimination’.” Snowden v.

Hughes, 321 U.S. 1, 8 (1943) (citations omitted). Further

elaborating on the concept, the Eleventh Circuit noted that:

“[dJiscriminatory purpose” implies more than

intent as volition or intent as awareness of

consequences. It implies that the decisionmaker

... selected ... a particular course of action at

least in part “because of ... its adverse effects

upon an identifiable group. [Citation omitted.]. Thus,

for plaintiffs to prevail, defendants’ conduct must have

been deliberately based on an unjustifiable,

group-based standard.

98a

Appendix G

E & T Realty, 830 F.2d at 1114. Moreover, “mere error or

mistake in judgment or even an arbitrary and capricious

action when applying a facially neutral statute does not

violate the equal protection clause”; rather, “there must be

intentional discrimination.” /d. at 1114.

Plaintiffs have presented no evidence that Surfside’s decision

to allow Mogen David Congregation to remain in the residential

district, while at the same time seeking to prohibit Plaintiffs from

locating in the business and tourist districts as per the zoning

code, was based on “an unjustifiable, group-based standard.”

Plaintiffs claim that a triable issue of fact exists, based on the

following argument:

Viewed in toto, given the small size of the Town and

the opening of only four synagogues in more than a

thirty year period; Surfside’s extensive, documented

efforts to prevent the Shul of Bal Harbour, Midrash

and Young Israel from opening up, purportedly on

zoning grounds; the synagogue and church related

ordinances becoming more restrictive over time,

support an inference that Surfside’s selective

enforcement is based on an impermissible motive —

be it political or religious.

Plfs. Memo. in Resp. at 10.

Plaintiffs miss the mark with respect to their burden.

Assuming that Plaintiffs could show that they are similarly

situated, they must prove that the act of enforcing the code

against them, while allowing Mogen David Congregation,

another orthodox synagogue, to remain where it is located

99a

Appendix G

despite the fact that it is violating a zoning ordinance, is based on

intentional discrimination. The Court agrees with Defendant that

Surfside’s conduct in allowing Mogen David to remain would

suggest nor discrimination, but rather that Surfside is not enforcing

the code against Plaintiffs based on the fact that they are an

orthodox Jewish congregation.

The Court finds that Plaintiffs have failed to show a material

factual dispute as to whether there has been “clear and intentional

discrimination” with respect to different treatment of Plaintiffs

and Mogen David Congregation. Accordingly, summary judgment

is warranted on this basis as well.

III. Counterclaim

Surfside moves for summary judgment on its second

counterclaim, Count 11, which states:

WHEREFORE, Surfside requests this Court issue

an injunction ordering Midrash and Young Israel

to cease and desist any further actions which

constitute violations of Chapter 90 of the Code,

including Midrash and Young Israel from

operating synagogues or houses of worship or

other similar activities at 9592 Harding Avenue

and 9501 Collins Avenue. Surfside further

demands judgment in its favor for civil penalties

up to $1,000 per day, plus the costs of this action,

and attorneys’ fees pursuant to Sections 1-8 and

90-3 of the Code.

100a

Appendix G

Because this Court has found that there is an issue of fact

regarding whether §§ 90-151 and 90-152 of the Surfside Zoning

Code violate the Religious Land Use and Institutionalized Persons

Act of 2000, 42 U.S.C. § 2000cc (“RLUIPA”), the Court denies

Defendant’s motion for summary judgment on this counterclaim.

IV. Conclusion

Based on the foregoing analysis, it is ORDERED and

ADJUDGED as follows:

1. Defendant Town of Surfside’s Motion for Summary

Judgment on Count V of Plaintiffs’ Second Amended

Complaint is hereby GRANTED.

2. Defendant Town of Surfside’ Motion for Summary

Judgment on Surfside’s Counterclaims [sic] is hereby

DENIED.

DONE AND ORDERED this 3" day of January, 2003

at Miami Florida.

s/ Stephen T. Brown

STEPHEN T. BROWN

U.S. MAGISTRATE JUDGE

10la

APPENDIX H — ORDER ON MOTIONS FOR

SUMMARY JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA DATED JANUARY 2, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 99-1566-CIV-UNGARO-BENAGES/BROWN

MIDRASH SEPHARDI, et al.,

Plaintiffs,

VS.

TOWN OF SURFSIDE,

Defendant.

ORDER ON MOTIONS FOR

SUMMARY JUDGMENT

THIS MATTER is before this court on Defendant Town

of Surfside’s Motion for Summary Judgment on Plaintiffs’

Third Amended Complaint’s “Seventh Claim for Relief,”

filed July 6, 2001, and on Plaintiffs Motion for Summary

Judgment on Count VII of the Third Amended Complaint,

filed August 8, 2001. This court has reviewed the motions,

the responses, the replies, and all pertinent materials in the

file.

The motions at issue concern Plaintiffs’ Seventh Claim

for Relief (Free Exercise of Religion - Religious Land Use

102a

Appendix H

and Institutionalized Persons Act of 2000). This Court

thoroughly set forth the facts of this case and discussed the

Ordinances at issue in its prior Order Re: Final Summary

Judgment dated July 13, 2000 (hereinafter referred to as

“7/13/00 Order”). This Court adopts the findings of fact and

conclusions of law contained therein, and adds the following

pertinent facts.

FACTS

Plaintiff Young Israel no longer operates at the Coronado

Hotel. Plaintiffs state that Young Israel is “actively and

diligently searching for a new location to operate in the same

tourist (multifamily) district, or in the business district. .. .”

In the meantime, its members are attending services at

Midrash Sephardi in the B-1 zoning district.

DISCUSSION'

Plaintiffs move for summary judgment on Count VH, in

which Plaintiff’s allege that Article IV of the Surfside Zoning

Code, particularly §§ 90-151, 90-152, 90-147 and 90-41

violate §§ 2(a)(1), 2(b)(1) and 2(b)(3)(B) and 2(a)(1) of the

Religious Land Use and Institutionalized Persons Act

of 2000, 42 U.S.C. § 2000cc (“RLUIPA” or “the Act”).

Defendant Surfside also moves for summary judgment as to

Count VII, arguing that there is no issue of material fact

that its zoning code does not violate that statute. Alternatively,

Defendant argues that if there is a violation, RLUIPA is

unenforceable because it violates the First Amendment

Establishment Clause, and Tenth Amendment principles of

federalism and separation of powers.

1. This Court adopts its prior discussion of the standards

applicable on a motion for summary judgment.

103a

Appendix H

I. Standing and Other Prudential Concerns

This Court found in its 7/13/00 Order that Plaintiffs

did not have standing to contest the constitutionality of

Ordinance §90-41, which provides the procedures for

obtaining a Conditional Use Permit.? Plaintiffs request that

the Court reconsider that finding. The Court rejects Plaintiffs’

argument that they have demonstrated “a substantial

likelihood that [§90-41] will be enforced against the plaintiffs

based on Surfside’s conduct to date.’ Therefore, the Court

declines to reconsider its prior ruling, and will confine its

discussion to §§ 90-151 and 90-152, and finds that as to those

Ordinances, the claim is not moot.

2. Ordinance §90-147, which concerns the RD- | two-family

residential district, allows religious institutions as a permitted

conditional use.

3. Plaintiffs cite Florida Cannabis Action Network, Inc. y. City

of Gainesville, 231 F.3d 761 (11th Cir. 2000) in support of their

standing argument. However, this Court has already determined that

Standing based on an unlawful prior restraint, which that case

concerns, is not applicable here. The Court also rejects Plaintiffs’

argument that the Court previously ruled on the standing issue without

notice. As Defendant notes, Defendant raised the issue of standing

in its Response to Plaintiff’s Motion and Memorandum for Partial

Summary Judgment.

104a

Appendix H

Il. RLUIPA

RLUIPA provides in pertinent part as follows:

Sec. 2 Protection of Land Use as Religious

Exercise

(a) Substantial Burdens

(1) General Rule — no government shall

impose or implement a land use regulation in

a manner that imposes a substantial burden on

the religious exercise of a person including a

religious assembly or institution, unless the

government demonstrates that imposition of

the burden on that person, assembly, or

institution —

(A) is in furtherance of a compelling

governmental interest; and

(B) is the least restrictive means of

furthering that compelling governmental

interest.

(b) Discrimination and Exclusion —

(1) Equal Terms. — No government shall

impose or implement a land use regulation in

a

a SSS

a, i ee i ee ee

105a

Appendix H

a manner that treats a religious assembly or

institution on less than equal terms with a

nonreligious assembly or institution.

(3) Exclusions and Limits. - No

government shall impose or implement a land

use regulation that —

(A) totally excludes religious assemblies

from a jurisdiction;

or

(B) unreasonably limits- religious

assembly institutions or structures

within a jurisdiction. (Emphasis

added).

Plaintiff’s allege in Count VII that the Ordinances in this

case violate the subsections highlighted above.

A. Section 2(a)(I) Substantial Burdens/Compelling

Governmental Interest/Least Restrictive Means

RLUIPA provides that “[i]f a plaintiff produces prima

facie evidence to support a claim alleging a violation of the

Free Exercise Clause or a violation of section 2, the

government shall bear the burden of persuasion on any

element of the claim, except that the plaintiff shall bear the

burden of persuasion on whether the law (including a

regulation) or government practice that is challenged by the

106a

Appendix H

claim substantially burdens the plaintiff s exercise of

religion.” RLUIPA § 4(b).

Plaintiffs reargue that the exercise of their religion has

been substantially burdened because “relocation (pursuant

to the Surfside Ordinance) would significantly impede and

impair many of Plaintiffs’ Orthodox Jewish members,

particularly elderly ones, who reside in the northerly side of

Surfside and in neighboring Bal Harbour and Bay Harbor

Islands, from walking to synagogue and participating in

synagogue worship on Saturdays and Jewish holidays. ...”

Plfs. Memo. p. 15. In its 7/13/00 Order, this Court found

that Plaintiffs had failed to prove a substantial burden,

rejecting Plaintiffs’ integrated “Surf-Bay-Bal” religious

community argument. The Court adopts that discussion for

purposes of these motions. See 7/13/00 Order pp. 22, 27.

Plaintiffs take issue with the Court’s characterization of

the “center of geographic Surfside,” and again claim that

“a substantial number of worshipers cannot walk to that

district on the Sabbath and Jewish holidays.” The Court

reiterates its finding that the focus should be on the burden

to members of the congregation-who reside in Surfside, and

Plaintiffs have only presented evidence of four such

members. Plaintiff suggest that they “need not provide

testimony of every burdened member to establish its case,

and have simply provided a cross-section of members to

demonstrate this point.” Plaintiff’s direct the Court to the

affidavits of Rabbi Caspar and Rabbi Elnecave, which,

Plaintiffs argue, evidence “[t]he much larger overall

percentage of walk-burdened individuals.” However, those

107a

Appendix H

affidavits do not reference the percentage of Surfside residents

who are allegedly burdened.

Plaintiffs argue that every person has ri ghts under RLUIPA,

and this Court should not limit its inquiry to Surfside

congregation members. The Court finds Plaintiffs’ attempt to

analogize liability in the instant case to a case in which a Bal

Harbour resident living on 97th Street can sue Surfside for

personal injury caused by Surfside’s “release[s] of noxious

fumes on 95th Street” to be inapposite. The situation Plaintiffs

reference is based on a negligence theory, and associated duties,

whereas the instant case is based on an Ordinance scheme which

govern a municipality, and the residents and businesses therein.

It would be virtually impossible to require a municipality

to ensure that every person will not be burdened by the walk to

the temple of their choice, particularly with respect to members

who live outside the municipality. Arguably, any person in any

community surrounding Surfside could take that position, which,

if Plaintiffs’ logic is followed, would require Surfside to allow

religious buildings in every zone. This Court again finds that

an analysis which focuses on substantial burden to residents of

the municipality at issue is appropriate in a zoning case. The

Court notes that RLUIPA’s legislative history contains language

that the Act “does not provide religious institutions with

immunity from land use regulation, nor does it relieve religious

institutions from applying for variances, special permits or

exceptions, hardship approval, or other relief provisions in land

use regulations, where available without discrimination or unfair

delay.” Murphy v. Zoning Commission of the Town of New

Milford, 148 F.Supp.2d 173, 184 (D. Conn. 2001) (citing 146

Cong. Rec. S7774-01, § 7776 (daily ed. July 27, 2000)).

108a

Appendix H

Plaintiffs cite language from Lennart v. Board of

Elections, 232 F.3d 135 (2d Cir. 2000), cert. denied, 533 U.S.

915 (2001), in which the Second Circuit stated that “the NYC

Board’s suggestion that any cognizable ‘injury-in-fact’ stops

at the electoral district’s edge misunderstands the nature of

the plaintiffs’ challenge to section 6-132(2). .. .” The Court

notes that the issue that the Lerman Court was addressing

was whether the plaintiff had standing to challenge the

ordinance in question. This Court has found in this case that

the Plaintiff temples do have standing to challenge sections

which deal with their ability to locate in the business and

tourist districts, and that they therefore have demonstrated

an injury in fact as to those provisi

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