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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1413%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1146

## Text

la

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)

2a

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.

3a

Appendix A

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

4a

Appendix A

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.

Seah Sp AG RIN MT Re I Ae, ple

By sees pels Ba ia a

Sa

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).

6a

Appendix A

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.

7a

Appendix A

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)

8a

Appendix A

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).

9a

Appendix A

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)

10a
Appendix A

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.

lla

Appendix A

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.

ae

12a

Appendix A

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

13a

Appendix A

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

I4ea

Appendix A

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.

1Sa

Appendix A

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.

l6a

Appendix A

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,

17a

Appendix A

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

18a

Appendix A

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

19a

Appendix A

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

20a

Appendix A

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

we ee ‘ % ‘ fear) hie sa
ind a actaiisise se te a A SS NB Ee aR I LAN at ANE dS i A RN: Eo ARN LN

Ade he nat te ine bed ANB DTD AMO BIER CAGE Gol Bh WN tale

4a
=
%
5
i
=
4
;

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, De

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1413%3A2. Public record. Not legal advice.