The Victory Center et al v. City of Kelso, et al, No. 3:2010cv05826 - Document 40 (W.D. Wash. 2012)
Court Description: ORDER granting in part and denying in part 28 Defendants' Motion for Summary Judgment. GRANTED as to federal and state constitutional claims, substantial burden provision of RLUIPA, conspiracy claims and WAPA claim. DENIED as to less than equal terms provision of RLUIPA. DENYING Pltfs' Motion for Summary Judgment 34 . GRANTING Kerins's request for qualified immunity. Signed by Judge Ronald B. Leighton.(DN)
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The Victory Center et al v. City of Kelso, et al Doc. 40 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 THE VICTORY CENTER, et al., Plaintiffs, 10 11 12 13 No. 3:10-cv-5826-RBL v. CITY OF KELSO, et al., Defendants. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Dkt. #28] 14 15 16 THIS MATTER comes before the Court on Defendants’ Motion for Summary Judgment 17 [Dkt. #28] and Plaintiffs’ Response and Motion for Summary Judgment [Dkt. #34]. After 18 careful review of the pleadings, declarations, and briefing in support of both motions, 19 Defendants’ motion is granted in part and denied in part, and Plaintiffs’ motion is denied. 20 I. BACKGROUND 21 22 The Victory Center is a nonprofit entity affiliated with the Kelso Church of Truth, a 23 Christian nondenominational congregation. Pls.’ Compl. at 3–4 [Dkt. #1]; Decl. of Michael 24 Kerins, Ex. Q at 62 [Dkt. #30-1]. According to the Victory Center’s articles of incorporation, the 25 entity’s purpose is “[t]o hold educational sessions in life skills for youth and adults, cultural 26 events and conferences.” Kerins Decl. at 62 [Dkt. #30-1]. In 2006, the Victory Center began its 27 28 operations in cohabitation with the Church of Truth at 401 Pacific Avenue South in Kelso, ORDER - 1 Dockets.Justia.com 1 Washington. Id. It remained in this location until 2008, when the church and the Victory Center 2 relocated to Longview, Washington, a short distance from south Kelso. Pls.’ Compl. at 5 [Dkt. 3 #1]. 4 During this time, the City of Kelso was working to update its zoning ordinances and 5 create a synergy among land uses in a small core of the city known as the Commercial Town 6 7 Center (CTC). Defs.’ Mot. at 3 [Dkt. #28]. In an effort to encourage pedestrian-oriented retail 8 activity on the street level within a four-block subarea of the CTC, the city amended its 9 Development Regulations in April of 2009. Id. at 4. The amended version of the zoning 10 regulations provide a table of allowable land uses within each zoning district, and it prohibits the 11 following uses within the CTC “on the ground floor on Pacific Ave., South between Oak and 12 13 Maple Streets”: recreation facilities, active; fitness centers and sports clubs; participant sports 14 and recreation—indoor; auditoriums, clubhouses, and meeting halls; community centers and 15 recreation facilities; religious facilities; family day care and child care centers; personal and 16 professional services; professional offices; and retail sales and services with screened outdoor 17 18 storage. KMC 17.15.020. The CTC zone allows—including on the ground floor of the four- 19 block subarea—most retail establishments, restaurants, and entertainment facilities, as well as 20 educational, cultural, or governmental uses.1 Id. 21 In 2010, the property at 401 Pacific Avenue South became available after a martial arts 22 studio vacated the premises, and the Victory Center entered into negotiations to purchase the 23 24 property from Boyd Real Estate Investments. Defs.’ Mot. at 6. Because this address is located 25 within the CTC’s pedestrian retail area, Michael Kerins, the city’s Director of Community 26 Development, contacted Leonid Pisarchuk, the Victory Center’s authorized representative, to 27 28 1 The table simply states, “Educational, cultural, or governmental.” Unlike other allowable uses, it is unclear exactly what these adjectives are intended to modify. ORDER - 2 1 2 advise him of the zoning changes. Id. About one month later, Mr. Pisarchuk signed a lease agreement to rent the building. Id. On July 19, 2010, the city served the Victory Center with a Notice of Zoning Ordinance 3 4 Violation. Id. Plaintiffs’ counsel responded by letter and indicated the Victory Center was not a 5 church, but rather a cultural and educational center, and therefore compliant with the city’s new 6 7 zoning regulations. Id. at 7. After reviewing the Victory Center’s supporting documentation, the 8 city issued a formal interpretation of use; it concluded the Victory Center functioned more like a 9 community center, which is a prohibited use on the first floor of 401 Pacific Avenue South. Id.; 10 see also KMC 17.15.020. 11 The Victory Center appealed this determination to the City of Kelso Hearing Examiner. 12 13 Defs.’ Mot. at 7 [Dkt. #28]. Both parties were represented by counsel at the hearing, and each 14 side was afforded an opportunity to present evidence, take testimony, and cross-examine 15 opposing witnesses. Kerins Decl. at 61 [Dkt. #30-1]. At the conclusion of testimony, the 16 hearing examiner continued the matter to allow both parties to provide supplemental briefing on 17 18 various legal issues that arose during the hearing. Id. at 62. Because the zoning regulations did 19 not expressly define “community center” or the words “educational, cultural, or governmental,” 20 each party presented definitions of “community center” and “cultural center” for the hearing 21 examiner’s consideration. Id. at 66. The hearing examiner accepted the city’s definitions of both 22 terms. Id. at 67. Next, the hearing examiner concluded “that the [Victory Center’s] activities 23 24 25 26 27 constitute a ‘community center’ and as such are prohibited under the City’s ordinance.” Id. at 67. The Victory Center did not appeal the hearing examiner’s determination and instead filed this lawsuit. It alleges sixteen causes of action, including violations of the Religious Land Use 28 ORDER - 3 1 and Institutionalized Persons Act of 2000 (RLUIPA); free exercise, freedom of speech, freedom 2 of assembly, equal protection, and due process claims under the First and Fourteenth 3 Amendments to the United States Constitution and the corresponding articles of the Constitution 4 of the State of Washington; violations of the Washington Administrative Procedure Act; and 5 conspiracy to violate civil rights under 42 U.S.C. §§ 1985–86. Pls.’ Compl. at 9–16 [Dkt. #1]. 6 The City of Kelso moves for summary judgment with respect to all sixteen counts. The 7 8 Victory Center has filed a response and motion for summary judgment with respect to the 9 RLUIPA and constitutional claims, and the Court will consider both motions concurrently. 10 II. ANALYSIS 11 Summary judgment is appropriate when, viewing the facts in the light most favorable to 12 13 the nonmoving party, there is no genuine issue of material fact which would preclude summary 14 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 15 summary judgment if the nonmoving party fails to present, by affidavits, depositions, answers to 16 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for 17 18 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 19 evidence in support of the nonmoving party’s position is not sufficient.” Triton Energy Corp. v. 20 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 21 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 22 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, 23 24 “summary judgment should be granted where the nonmoving party fails to offer evidence from 25 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 26 1220. 27 28 ORDER - 4 A. Issue Preclusion 1 2 3 4 The Victory Center is barred from arguing it is a cultural center within the meaning of the city’s zoning regulations. The doctrine of issue preclusion prevents relitigation of issues of fact or law that have been “actually decided” after a “full and fair opportunity” to be heard. Robi v. 5 Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988). The Victory Center argued it was a 6 7 “cultural center” on appeal to the Kelso Hearing Examiner, who determined the Victory Center 8 functioned more like a “community center.” Kerins Decl. at 67 [Dkt. #30-1]. The Victory 9 Center did not appeal this ruling, and it had a full and fair opportunity to litigate this issue. See 10 id. at 68. 11 The Victory Center, however, is not precluded from arguing it is a religious assembly 12 13 because the Hearing Examiner expressly declined to make a finding on this point: “The issue of 14 whether RLUIPA applies is not properly before me as, again, neither party claims that the 15 Victory Center is a ‘religious assembly or institution’ and, secondly, my jurisdiction does not 16 extend to issues of federal regulation.” Id. 17 18 19 B. RLUIPA Claims In 1993, Congress enacted the Religious Freedom and Restoration Act (RFRA) in 20 response to the Supreme Court’s decision in Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 21 494 U.S. 872, 878–82 (1990), which held that the Free Exercise Clause “does not inhibit 22 enforcement of otherwise valid laws of general application that incidentally burden religious 23 24 conduct.” Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 985 (9th Cir. 25 2006) (internal quotation marks omitted). But the Supreme Court invalidated RFRA because it 26 exceeded Congress’s authority under Section Five of the Fourteenth Amendment. See City of 27 Boerne v. Flores, 521 U.S. 507, 533 (1997). Congress then wrote the Religious Land Use and 28 ORDER - 5 1 Institutionalized Persons Act so that it “would only apply to regulations regarding land use and 2 prison conditions.” Guru Nanak, 456 F.3d at 986. A number of Circuit Courts of Appeal have 3 upheld the constitutionality of RLUIPA. See, e.g., Guru Nanak, 456 F.3d at 993–96 (“RLUIPA 4 is a congruent and proportional response to free exercise violations because it targets only 5 regulations that are susceptible, and have been shown, to violate individuals’ religious 6 7 8 9 10 exercise.”); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1236–43 (11th Cir. 2004). RLUIPA imposes two separate limitations on the government’s regulation of land use. First, the government cannot impose “a substantial burden” on “a religious assembly or 11 institution” unless the burden “is in furtherance of a compelling governmental interest” and “is 12 13 the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 14 2000cc(a)(1). Second, the government cannot impose or implement a land use regulation that 15 “treats a religious assembly or institution on less than equal terms with a nonreligious assembly 16 or institution,” or “discriminates against any assembly or institution on the basis of religion,” or 17 18 “totally excludes” or “unreasonably limits” religious assemblies from a jurisdiction. 42 U.S.C. § 19 2000cc(b). 20 1. Substantial Burden Provision Under RLUIPA 21 The substantial burden prong of RLUIPA applies only if one of three conditions is 22 present: (1) if the land use regulation is imposed in a program or activity that receives federal 23 24 funding; (2) if the land use regulation’s burden affects interstate commerce; or (3) if the land use 25 regulation is imposed in a system where the government makes individualized assessments of the 26 property’s proposed use. 42 U.S.C. §§ 2000cc(a)(2)(A)–(C). The Victory Center does not 27 specify which of the three threshold conditions is satisfied here, but the city acknowledges that 28 ORDER - 6 1 “a zoning scheme requires . . . an individualized assessment . . . for each type of proposed land 2 use.” Defs.’ Mot. at 12 [Dkt. #28] (citing Guru Nanak, 456 F.3d at 987). Without inquiring 3 further, the Court assumes the substantial burden prong of RLUIPA applies to the City of 4 Kelso’s zoning scheme because the city makes individualized assessments of property use. 5 The next question is whether the scheme imposes a substantial burden on the Victory 6 7 Center’s religious exercise and, if so, whether this burden furthers a compelling governmental 8 interest in the least restrictive manner possible. The Victory Center bears the burden to prove the 9 city’s zoning regulations impose a substantial burden on religious exercise. Guru Nanak, 456 10 F.3d at 988. “For a land use regulation to impose a substantial burden, it must be oppressive to a 11 significantly great extent” and “impose a significantly great restriction or onus upon” religious 12 13 exercise. San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) 14 (internal quotation marks omitted). In other words, the burden must amount to “more than an 15 inconvenience on religious exercise.” Midrash Sephardi, 366 F.3d at 1227 (internal quotation 16 marks omitted). 17 18 The City of Kelso’s zoning regulations do not impose a substantial burden on the Victory 19 Center’s religious exercise because the Victory Center is free to locate its facility anywhere 20 outside the CTC’s four-block subarea dedicated to pedestrian retail activity. The Victory Center 21 could even locate its facility within this subarea anywhere above the first floor. The city 22 estimates that the restricted area represents less than one eighth of one percent of zoned land 23 24 within the city limits, Defs.’ Mot. at 4 [Dkt. #28], and locating outside of this small area does not 25 substantially impede the Victory Center’s ability to practice religious activities. In Midrash 26 Sephardi, two synagogues argued zoning regulations that prohibited religious facilities in seven 27 out of eight zoning districts imposed a substantial burden on religious exercise because the 28 ORDER - 7 1 congregants would have to walk longer distances to attend services, putting a significant burden 2 on the ill, young, and elderly. 366 F.3d at 1227. The court sympathized with the congregants’ 3 greater inconvenience but held that “walking a few extra blocks” is not “‘substantial’ within the 4 meaning of RLUIPA.” Id. at 1228. Similarly, the Victory Center has not presented any evidence 5 that 401 Pacific Avenue South bears any religious significance to the Church of Truth’s religious 6 7 tenets, and any burden imposed by the CTC’s land use restrictions is merely a matter of personal 8 or economic convenience. The statute does not impose an affirmative obligation upon the 9 government “to facilitate or subsidize the exercise of religion.” Mayweathers v. Newland, 314 10 F.3d 1062, 1069 (9th Cir. 2002). 11 The Victory Center relies on Cottonwood Christian Ctr. v. Cypress Redevelopment 12 13 Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002), for the proposition that a government imposes a 14 substantial burden on religious exercise when it restricts an assembly’s ability to lease a desired 15 space. In Cottonwood, the court took particular note of that church’s large and expanding 16 congregation—over 4,000 people—and concluded the redevelopment agency’s use of eminent 17 18 domain to acquire a property Cottonwood had planned to develop into a church imposed a 19 substantial burden on Cottonwood’s ability to practice its religion in a single location. 218 F. 20 Supp. 2d at 1226–27. The Victory Center argues there is no other comparable property in the 21 City of Kelso to perform its activities. This argument is unsupported in the pleadings and 22 filings, and it is unpersuasive. The Kelso Church of Truth has approximately forty congregants, 23 24 and the Victory Center has not advanced any compelling reason why this particular location is 25 better suited for its religious practices than any other nearby location. The City of Kelso’s land 26 use regulations do not constitute “more than an inconvenience on religious exercise.” Midrash 27 Sephardi, 366 F.3d at 1227 (internal quotation marks omitted). Because the Victory Center has 28 ORDER - 8 1 failed to carry its initial burden, the Court need not consider whether the regulations further a 2 compelling governmental interest in the least restrictive manner possible. 3 2. Equal Terms Provision Under RLUIPA 4 Separate and in addition to RLUIPA’s substantial burden provision, the statute also 5 prohibits a government from “impose[ing] or implement[ing] a land use regulation in a manner 6 7 that treats a religious assembly on less than equal terms with a nonreligious assembly or 8 institution.” 42 U.S.C. § 2000cc(b)(1). The Court of Appeals for the Ninth Circuit recently 9 construed the equal terms section of the statute. See Centro Familiar Cristiano Buenas Nuevas 10 v. City of Yuma, 651 F.3d 1163, 1170–73 (9th Cir. 2011). “Under the equal terms provision, 11 analysis should focus on what ‘equal’ means in the context.” Id. at 1172. “The city violates the 12 13 equal terms provision only when a church is treated on a less than equal basis with a secular 14 comparator, similarly situated with respect to an accepted zoning criteria.” Id. at 1173. If the 15 Victory Center establishes a prima facie case for unequal treatment, the burden then shifts to the 16 city to show otherwise. Id. 17 18 Any land use regulation that restricts religious exercise must be written narrowly to 19 achieve the government’s intended and legitimate purpose. See Centro Familiar, 651 F.3d at 20 1174–75. In Centro Familiar, the court concluded Yuma’s land use ordinance restricting 21 available property uses in the city’s “Old Towne District” treated religious institutions on a less 22 than equal basis with similarly situated secular institutions because the zoning scheme permitted 23 24 “membership organizations” as of right while it required “religious organizations” to obtain a 25 conditional use permit. Id. at 1166–67, 1171 (“[T]he express distinction drawn by the ordinance 26 establishes a prima facie case for unequal treatment.”). The city passed the ordinance in order to 27 limit restrictions on the issuance of liquor licenses within the Old Towne District, but the court 28 ORDER - 9 1 2 held the ordinance’s language was too broad because it affected all religious activities, not just churches (only “churches” implicated a 300-foot buffer for liquor licenses). Id. at 1174–75. The city points out its zoning scheme does not restrict religious expression to this degree. 3 4 For example, the Victory Center could conceivably open a religious bookstore within the CTC’s 5 designated retail district. Defs.’ Mot. at 19 [Dkt. #28]. While this may be true, the Court’s 6 7 inquiry turns on whether Kelso’s land use restrictions treat the Victory Center “on a less than 8 equal basis with a secular comparator, similarly situated with respect to an accepted zoning 9 criteria.” Centro Familiar, 651 F.3d at 1173. 10 The first step in determining the “secular comparators” is to examine the Victory 11 Center’s activities, which focus on theology classes, social services, literacy and tutoring, 12 13 exercise and nutrition, and ministry services.2 Thus, the Victory Center’s secular comparators 14 listed in the city’s zoning regulations are: community centers, club houses, meeting halls, 15 recreation facilities, fitness centers, and educational or cultural facilities. See KMC 17.15.020. 16 The zoning regulations equally exclude all of these comparators from the CTC’s designated 17 18 retail area, except for “educational, cultural, or governmental” uses. Id. It is unclear what the 19 city means by “educational, cultural, or governmental.” Without further development of these 20 terms, genuine issues of material fact exist with respect to whether the Victory Center, an entity 21 arguably engaged in educational and cultural pursuits, is treated on less than equal terms with 22 secular educational and cultural institutions that are free to locate within the CTC’s pedestrian 23 24 retail area. A finding that the city’s regulations violate the equal terms provision of RLUIPA as a 25 26 matter of law, however, would go too far. If the city had limited the allowable educational, 27 28 2 For a more comprehensive “list of activities that the Victory Center presently undertakes . . . or has plans to undertake,” see Kerins Decl., Ex. Q at 64 [Dkt. #30-1]. ORDER - 10 1 cultural, or governmental uses to retail purposes, the city would probably “demonstrate that the 2 less-than-equal-terms are on account of a legitimate regulatory purpose, not the fact that the 3 institution is religious in nature.” Centro Familiar, 651 F.3d at 1172. But because the city has 4 failed to articulate its justification for treating the Victory Center differently from nonretail 5 educational and cultural uses, this question remains open for finder of fact. 6 C. Federal Constitutional Claims 7 8 9 10 Next, Plaintiffs argue the City of Kelso’s exclusion of religious organizations from the CTC’s pedestrian retail area violates provisions of the First and Fourteenth Amendments to the United States Constitution. 11 1. Free Exercise of Religion 12 13 The Establishment and Free Exercise Clauses of the First Amendment, applied to the 14 States through the Fourteenth Amendment, provide that “Congress shall make no law respecting 15 an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. 16 Laws that incidentally burden a particular religious practice, however, do not trigger heighted 17 18 19 20 21 judicial review if the law is “neutral and generally applicable.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). The Victory Center argues the city’s zoning regulations violate the First Amendment by prohibiting the free exercise of religion within the CTC’s pedestrian retail area. The city, on the 22 other hand, couches the regulation as a permitted limitation that does not deprive the Victory 23 24 Center from observing its religious tenets. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 25 485 U.S. 439, 449–51 (1988) (holding the Free Exercise Clause did not prohibit the government 26 from permitting timber harvesting and road construction in an area traditionally used for 27 religious purposes). 28 ORDER - 11 1 The city’s zoning regulations do not “prohibit the free exercise” of religion. Unlike the 2 law at issue in Lukumi, which prohibited an activity central to the Santeria faith (the ritual 3 slaughter of animals), the city’s zoning regulations do not prohibit or impede the Victory 4 Center’s ability to practice its religion. See 508 U.S. at 524–28. A religious organization does 5 not possess a “constitutional right to be free from reasonable zoning regulations.” Messiah 6 7 Baptist Church v. Cnty. of Jefferson, 859 F.2d 820, 826 (10th Cir. 1988). The city’s zoning 8 scheme does not offend the Free Exercise Clause because the zoning regulations only 9 incidentally burden the Victory Center’s free exercise, and the regulations are neutral and 10 generally applicable to other nonretail property uses. 11 2. Freedoms of Speech & Assembly 12 13 The First Amendment further provides, “Congress shall make no law . . . abridging the 14 freedom of speech . . . or the right of the people peacefully to assemble.” U.S. Const. amend. I. 15 Victory Center contends the City of Kelso’s zoning regulations unconstitutionally abridge its 16 right to engage in religious speech and assembly. This is an inaccurate assertion. Nothing in the 17 18 zoning regulations curtails the Victory Center’s ability to peacefully assemble and speak freely 19 within the CTC’s pedestrian retail area. Even if the Victory Center is unable to lease building 20 space on the first floor of this area, its members are still permitted to gather in the public spaces 21 and share Victory Center’s message with the public citizenry. 22 3. Due Process & Equal Protection 23 24 The Fourteenth Amendment guarantees equal protection under the law and protects 25 individuals from government deprivation of life, liberty, and property without due process of 26 law. U.S. Const. amend. XIV. The Victory Center’s due process and equal protection 27 arguments merge, but the general grievance is that the City of Kelso’s zoning regulations 28 ORDER - 12 1 2 3 4 impermissibly target religious institutions for discriminatory treatment and interfere with the fundamental right of free exercise of religion. The Due Process Clause provides the textual basis for unenumerated fundamental rights. If a fundamental right has been infringed, the court must determine whether the law infringing on 5 the right is sufficiently related to a compelling governmental purpose. The free exercise of 6 7 religion is certainly a substantive due process right because it is enumerated in the First 8 Amendment, but the zoning regulations do not infringe the right. Therefore, there is no 9 substantive due process violation and the Court need not consider whether the law is narrowly 10 tailored to achieve a compelling governmental interest. 11 “Equal protection analysis requires strict scrutiny of a legislative classification only when 12 13 the classification impermissibly interferes with the exercise of a fundamental right or operates to 14 the peculiar disadvantage of a suspect class.” Mass Bd. of Retirement v. Murgia, 427 U.S. 307, 15 312 (1976) (citing San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973)). Because the law 16 in question does not impermissibly interfere with the Victory Center’s free exercise rights, 17 18 heightened judicial review is triggered only if the classification “operates to the peculiar 19 disadvantage” of a suspect class. The Court concludes the Victory Center is not a member of an 20 established “suspect class,” such as a racial minority, that implicates either strict or intermediate 21 scrutiny. Thus, the zoning regulations must be sustained if they are rationally related to a 22 legitimate governmental interest. 23 24 Some classifications that disadvantage quasi suspect classes have been held to violate 25 equal protection principles under rational basis review, however. E.g., City of Cleburne v. 26 Cleburne Living Ctr., 473 U.S. 432 (1985) (invalidating a zoning ordinance that required a group 27 home for the developmentally disabled to obtain a special use permit while other groups could 28 ORDER - 13 1 locate as of right); Love Church v. City of Evanston, 671 F. Supp. 515 (N.D. Ill. 1987) (holding 2 an ordinance that required a church to obtain special use permit violated the Equal Protection 3 Clause). Even if the Court were to accept that the Victory Center is a member of a quasi suspect 4 class, the zoning regulations equally disadvantage nonreligious entities. See KMC 17.15.020. 5 Furthermore, the zoning regulations are rationally related to achieve a legitimate governmental 6 7 purpose, namely, to create a centralized retail synergy and encourage economic growth in the 8 City of Kelso’s downtown core. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 9 (1981) (“The power of local governments to zone and control land use is undoubtedly broad and 10 its proper exercise is an essential aspect of achieving a satisfactory quality of life.”). The City of 11 Kelso’s land use regulations do not violate the Equal Protection Clause. 12 13 D. State Constitutional Claims 14 The Constitution of the State of Washington protects “freedom of conscience in all 15 matters of religious sentiment, belief and worship.” Wash. Const. art I, § 11. This constitutional 16 protection does not guarantee “the right to be free of all government regulation,” however. N. 17 18 Pac. Union Conference Ass’n of Seventh Day Adventists v. Clark County, 74 P.3d 140 (Wash. 19 Ct. App. 2003). In evaluating land use and zoning restrictions that impede free exercise, 20 Washington courts “require a very specific showing of hardship to justify exemption from land 21 restrictions.” Id. at 32 (citation omitted) (internal quotation marks omitted). As explained in the 22 Court’s analysis above, the Victory Center simply has not made a specific or persuasive showing 23 24 of “hardship” that would implicate a state constitutional violation. 25 E. Violations of the Washington Administrative Procedure Act 26 Washington’s Administrative Procedure Act (WAPA) governs state administrative 27 rulemaking and adjudication procedures. See RCW 34.15. The Victory Center argues the City 28 ORDER - 14 1 of Kelso’s land use determination was arbitrary and capricious in violation of the WAPA. 2 But the WAPA only applies to “state agencies” administering statewide programs. RCW 3 34.15.010; Kitsap Cnty. Fire Prot. Dist. No. 7 v. Kitsap Cnty. Boundary Review Bd., 943 P.2d 4 380 (Wash. Ct. App. 1997). As a local municipality, the City of Kelso is not bound by the 5 WAPA, and the Court need not consider whether the City’s determination of use was arbitrary 6 7 8 and capricious. F. Conspiracy to Violate Civil Rights & Failure to Prevent a Conspiracy Under 42 U.S.C. §§ 1985–86 9 10 The Victory Center has not provided any evidence of a conspiracy between Mr. Kerins 11 and the city to deprive the Plaintiffs of their civil rights under 42 U.S.C. § 1985. In fact, Mr. 12 Kerins began the process of amending the city’s land use regulations, and the City Council 13 passed the amended regulations, before the Victory Center leased 401 Pacific Avenue South. 14 Defs.’ Mot. at 21 [Dkt. #28]. There is no indication that the city sought to restrict available land 15 16 uses with the CTC’s four-block subarea for any reason other than to encourage pedestrian retail 17 traffic, and certainly not to affirmatively discriminate against the Victory Center. Because the 18 Victory Center’s section 1985 claim fails, its section 1986 claim for failure to prevent a 19 conspiracy also fails. See Trerice v. Pederson, 769 F.2d 1398, 1403 (9th Cir. 1985). 20 21 22 23 24 G. Qualified Immunity The doctrine of qualified immunity protects city officials from personal liability for an action taken in their official capacity so long as the action is objectively reasonable and does not violate a clearly established federal right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Mr. 25 Kerins’s effort to retool and subsequently enforce the City of Kelso’s zoning scheme is 26 27 objectively reasonable and constitutes an official action within the scope of his position as 28 Director of Community Development. While the zoning regulations may or may not violate the ORDER - 15 1 equal terms provision of RLUIPA, the Victory Center “must demonstrate that the contours of the 2 rights at issue here (constitutional and RLUIPA-derived) were sufficiently clear that a reasonable 3 official would understand that what he was doing violates those rights.” Hale O Kaula Church v. 4 Maui Planning Com’n, 229 F. Supp. 2d 1056, 1068 (D. Haw. 2002). The Court cannot say with 5 confidence that the contours of RLUIPA are sufficiently clear as courts continue to grabble with 6 7 the statute’s implications; thus, Mr. Kerins is entitled to qualified immunity. III. CONCLUSION 8 9 10 For the reasons stated above, Defendants’ Motion for Summary Judgment [Dkt. #28] is GRANTED IN PART with respect to all of the federal and state constitutional claims, the 11 substantial burden provision of RLUIPA, the conspiracy claims, and the WAPA claim. 12 13 Defendants’ motion [Dkt. #28] is DENIED IN PART with respect to the less than equal terms 14 provision of RLUIPA. Plaintiffs’ Motion for Summary Judgment [Dkt. #34] is DENIED. 15 Michael Kerins’s request for qualified immunity is GRANTED. 16 17 IT IS SO ORDERED. 18 Dated this 4th day of April, 2012. 19 20 21 22 23 A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 24 25 26 27 28 ORDER - 16
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