Nimit V Com Plaintiffs Fof Filed March 29 2019

Case 1:16-cv-00395-TFM-MU Document 168 Filed 03/29/19 Page 1 of 22
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
THAI MEDITATION ASSOCIATION OF

ALABAMA, INC, An Alabama Domestic Not-
For-Profit Corporation, SIVAPORN
NIMITYONGSKUL, VARIN
NIMITYONGSKUL, SERENA Civ. No.: 1:16-CV-00395 (TFM) (MU)
NIMITYONGSKUL, and PRASIT
NIMITYONGSKUL,
Plaintiffs,
v.
CITY OF MOBILE, ALABAMA,
Defendant.
PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs Thai Meditation Association of Alabama, Inc., Sivaporn Nimityongskul, Varin
Nimityongskul, Serena Nimityongskul and Prasit Nimityongskul, in accordance with the Court’s
March 28, 2019 Order, submit their Proposed Findings of Fact and Conclusions of Law:
1. Facts Regarding Plaintiffs
2. The Thai Meditation Association of Alabama, Inc., is an Alabama Domestic Non-

Profit Corporation established in 2007 with the stated purpose of, “Teaching and
research into growth and development of mind and spirit through meditation and
to expand the knowledge of Buddhism.”
Plaintiffs’ Trial Exhibit 95

Sivaporn Nimityongskul Testimony
William T. Youngblood, IV Testimony
3. The Thai Meditation Association of Alabama, Inc. was incorporated by the

Nimityongskul family and two Buddhist monks.
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4. Plaintiff Sivaporn Nimityongskul is a Director of the Thai Meditation Association

of Alabama, Inc. and is an owner of real property commonly known as 2410
Eloong Drive in Mobile, Alabama.
Joint Trial Exhibit 19

5. Plaintiff Varin Nitimyongskul is an owner of real property commonly known as

2410 Eloong Drive in Mobile, Alabama.
6. Plaintiff Serena Nimityongskul is an instructor at the Thai Meditation Association

of Alabama, Inc. and is an owner of real property commonly known as 2410
Eloong Drive in Mobile, Alabama.

Serena Nimityongskul Testimony
7. Plaintiff Prasit Nimityongskul is a Director of the Thai Meditation Association of

Alabama, Inc., and is an owner of real property commonly known as 2410 Eloong
Drive in Mobile, Alabama.

8. The Nimityongskul family purchased the home at 2410 Eloong Drive in Mobile,
Alabama for $690,000 on August 20, 2015.

9. The Thai Meditation Association of Alabama, Inc.’s first location was at 4567
Airport Boulevard in Mobile, Alabama.
Serena Nimityongskul Testimony 133:3-4
10. Since 2009, the Thai Meditation Association of Alabama, Inc. has operated a
Meditation Center at 3821 Airport Boulevard in Mobile, Alabama.
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11. The Meditation Center only practices Dhammakaya Buddhism and the
Dhammakaya Meditation technique.
Phra Nicholas Thanissaro Testimony 34:18-21
12. Dhammakaya Meditation is one of 40 Buddhist meditation methods.
13. In the Dhammakaya Buddhist tradition, meditation is considered religious

worship.
14. Buddhism teaches that “meditation is one component of Buddhism which is of

vital importance to one’s salvation and ability to upgrade one's quality of life to
the point where one can become enlightened . . . .”
15. Meditation is taught at the Meditation Center by Buddhist monks and lay
teachers.
16. In the Plaintiffs’ Buddhist tradition, the only distinction between a place being a
meditation center and a temple is whether a monk can live in it or not.
17. In the Plaintiffs’ Buddhist tradition, a meditation center is a house of worship and
the Meditation Center at 3821 Airport Boulevard is a place of worship because it
has the practices of worship.
Phra Nicholas Thanissaro Testimony 50:16-51:2
18. The Meditation Center of Alabama is affiliated with the Dhammakaya

Foundation.
19. The Dhammakaya Foundation is a network of approximately 200 branches

throughout the world, originating from Wat Phra Dhammakaya in Pathum Thani,
Thailand, that teach meditation in the same Buddhist tradition.
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20. Within Buddhism there’s a sense of people who are affiliated to other faiths being
able to practice aspects of Buddhism quite happily alongside their own faith and
even being encouraged to do so.
21. One of the objectives of the Dhammakaya organization is to get people to

meditate whether they change their religion or not.
22. Facts Regarding Plaintiffs’ Proposed “use” under the City of Mobile Zoning
Ordinance
23. The property at 2410 Eloong Drive in Mobile, Alabama is zoned R-1 for single-
family residential.
Plaintiffs’ Trial Exhibit 1 at Paragraph 18
24. Pursuant to Section 64-12 of the City of Mobile’s Zoning Ordinance, a church or
religious facility is a use permitted with planning approval in the R-1 zoning
district.
25. Pursuant to 64-3(C)(1), a church or a school is a use explicitly encouraged in the

R-1 zone according to the City of Mobile’s Zoning Ordinance, but other uses
permitted in the zone with planning approval are not encouraged.
Bert Hoffman Trial Testimony 100:25-101:12
26. Pursuant to the City of Mobile’s Zoning Ordinance, a proposed use must be
determined pursuant to the Chart of Permitted Uses or, if not specifically listed
therein, according to what is most similar to the use.
Joint Trial Exhibit 10 at Section 64-12(c)
27. On April 24, 2015, Plaintiff Sivaporen Nimityongskul attended a predevelopment

meeting with City staff.
Sivaporn Nimityongskul Testimony 11:12-25
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28. During that meeting, she stated that she desired to build a meditation center and
guest house for visiting monks.
29. Based on this description, Bert Hoffman told Mrs. Nimityongskul that R-1 zoning
was appropriate for the proposed meditation center.
30. During the meeting, none of the staff members present questioned whether it was
appropriate to build the meditation center in an R-1 zone.
31. Plaintiff Sivaporn Nimityongskul filed applications with the City of Mobile for
planning approval, subdivision and planned unit development to build a
meditation center at 2410 Eloong Drive in Mobile, Alabama.
Defendant’s Trial Exhibit 48
32. If Plaintiffs’ proposed use were determined to be something other than “church or
religious facility”, it would not be permitted with planning approval and a
variance would be required, which is a different process before a different body.

James B. Watkins Testimony 176:18-177:211
33. Neither the City nor any of its agencies or employees appealed the determination
of planning staff that the proposed use was a “church or religious facility” to the
City’s Board of Adjustment within a 30 day period, as is required under the City’s
Code.
Bert Hoffman Testimony 176:22-179:3, 194:5-7.
34. According to the City of Mobile, “without regard to the issue of whether or not
the proposed use met the definition of ‘church or religious facility,’ it was
determined by the members of the Planning Commission by their vote that the
proposed use did not meet the criteria for planning approval and that the proposed
use was not appropriate for the location.”
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35. At the December 3, 2015 Planning Commission meeting, the Planning

Commissioners did not discuss land use impacts, but only discussed the religious
determination.
Joint Exhibit 9; Bert Hoffman Testimony 226:10-233:13, 240:25-241:2
36. Most of the statements made by opposing residents at the December 3, 2015
Planning Commission meeting concerned the religious determination.
Joint Exhibit 9
37. At the December 3, 2015, Planning Commission hearing, attorney John Lawler
stated that, “[y]ou don’t have to meet the requirements of a church, you just have
to meet the requirements of something that’s similar and I think religious facility
is something that I think was the right choice because it is a religious facility . . .
And it is a religious use.”
Joint Trial Exhibit 36 at 12:21-13:3
38. Lawler stated at the end of his statement on December 3, 2015 that "you'll find in
the October 15th report made on the request for planning approval you'll find that
it's referred to as a religious facility throughout, it is referred to as a religious
facility and there's never any suggestion otherwise."
Bert Hoffman Testimony 4:8-14
39. At the December 3, 2015, Planning Commission hearing, attorney Bill

Youngblood stated that, “It is a religious facility.”
Joint Trial Exhibit 36 at 24:14-15
40. Prior to the December 3, 2015 staff report, the City never told the applicant that it
would not treat the application as one for a religious facility.
41. Planner Bert Hoffman understood the use to be a church or religious facility, and
made the determination regarding the same.
Bert Hoffman Testimony 181:16-182:11
42. City Planner Marie York did not doubt the Association’s religious status.
Marie York Testimony 26:1-3.
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43. Members of the community questioned whether the Association’s proposed use
was a religious facility
44. On October 14, 2015 at 2:59 p.m., Clark Kelly wrote an email to the Planning
Commission arguing that the proposed meditation center was an “essentially
commercial activity” and likened it to a yoga studio.
Plaintiff’s Trial Exhibit 288
45. On October 14, 2015 between 3:49 p.m. and 4:19 p.m., city staff exchanged
emails regarding whether the proposed meditation center was a religious use.
Plaintiff’s Trial Exhibit 27
46. That was due to information that they had received questioning whether the
proposed use was religious or not, which would change the path for approval from
planning approval to a use variance.
47. Emails from neighbors questioning whether the proposed use was religious in
nature were the first time that city staff heard any objection to the proposed
meditation center being treated as a religious use.
Richard Olsen Testimony 176:6-17
48. As a result of that questioning, city staff chose to consult Planning Commission
attorney Douglas L. Anderson regarding the proposed use.

49. No other church has had their religious status questioned by the City.
50. At the October 15, 2015, Planning Commission hearing on Plaintiffs’

applications, Planning Commission attorney Doug Anderson told Bill
Youngblood, attorney for Sivaporn Nimityongskul, that, “For this to be proper
within the zoning ordinance, it has to be a religious use. We're going to need
written documentation, more than just an application, that says this is a religious
building or religious use. We’re going to need documentation to show -- to prove
that this is actually more than just a yoga or a meditation facility but that is is
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religious or a religious use otherwise planning approval is not going to be the

proper procedure but a Board of Adjustment variant would be proper.”
Joint Trial Exhibit 35 at 44:18-45:5
51. Substantial documentation regarding the Association’s religious status was

provided to the City.
Bert Hoffman Testimony 192:9-193:19, 97:12-20, 98:4-:100:10
52. Between the October 15, 2015 and December 3, 2015 Planning Commission
hearings, Douglas Anderson discussed the project with neighbor Tamela Esham,
who had spoken in opposition to the applications at the October 15, 2015
Planning Commission hearing.
Tamela Esham Testimony 123:16-18
53. Douglas Anderson determined that such documentation was not sufficient to
establish the Association as religious, which was contrary to Bert Hoffman’s
determination.
54. On November 30, 2015, Duane Graham sent Doug Anderson a package of
materials compiled by Tamela Esham which included a three page memorandum
from Ms. Esham, an attorney, arguing that they showed that the proposed
meditation center was a business, not a religious facility.
Joint Exhibit 30
55. On November 30, 2015, there was a meeting held at a shopping center on
Dauphin Island Parkway to inform the neighborhood about the proposed
meditation center.
Defendant’s Trial Exhibit 70
56. Tamela Esham, Sivaporn Nimityongskul, Serena Nimityongskul and Bill

Youngblood all attended the meeting.

Bill Youngblood Testimony 6:3-4
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57. At the November 30, 2015 meeting, neighbors said that they did not want a
Buddhist temple in their neighborhood.
Bill Youngblood Testimony 263:18-23
58. At the November 30, 2015 meeting, a man was crying and saying that he was
Christian and that the proposed meditation center was unacceptable.
59. At the November 30, 2015 meeting, one person said that the meditation center
was bringing a big Buddhist congregation into their neighborhood, but Tamela
Esham said that the lawyers would discuss the religion issue later.
60. Prior to the December 3, 2015, Planning Commission hearing, a Staff Report was
issued which recommended denial based on the classification of Plaintiff’s use as
commercial. The Staff Report did not include any proposed conditions that might
be imposed to aid in approval.
61. At the December 3, 2015, Planning Commission hearing, Ms. Esham’s attorney
Duane Graham stated that, “We believe this is essentially a commercial activity.”
62. James B. Watkins, Chairman of the Planning Commission then said, “I think I’m
understanding you and Mr. Lawler to basically be saying the same thing which is
whether it’s a church or whether it falls under community center or recreation
center or something like that, the religious aspect of it is kind of lifted out here.
It’s a question of whether or not there is going to be a grant of approval for this
use in this facility, on this property.”
63. At trial Mr. Watkins remembered that during the December 3, 2015 Planning
Commission hearing, “there was a lot more discussion about the commercial
aspects of this operation than there were the religious aspects of this operation.”
James B. Watkins Testimony 176:7-9
64. On December 4, 2015, Richard Olsen asked Doug Anderson what to use as the
reasons for the denial of Plaintiffs’ applications.
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65. He asked whether to use reasons he had drafted that morning in an email or
whether to use reasons in the staff report prepared for the meeting, which
indicated that the proposed meditation center was a commercial use.
66. Richard Olsen testified that he asked Mr. Anderson about which reasons to use,
“Knowing that it was a controversial issue and the fact that it was considered a
little differently than under the general planning approval.”
67. Douglas Anderson told Richard Olsen to use certain reasons concerning
compatibility, traffic, and access that Olsen had drafted.
Plaintiffs’ Trial Exhibit 37; Bert Hoffman Testimony 239:10-17, 241:12-22
68. These reasons were not stated by the Planning Commission members.
69. These reasons were never submitted to the Planning Commission members for
their review.
70. No planning commissioners stated at any point during the December 3, 2015
meeting anything remotely connected to the reasons.
71. No results agenda has ever been completed for the December 3, 2015 Planning
Commission meeting, as is the normal process.
Bert Hoffman Testimony 11:6-12:13.
72. The reasons for the motion made by Planning Commissioner Daves, as stated in
draft “Minutes” of the December 3, 2015 Planning Commission meeting, were
fabricated.
Bert Hoffman Testimony 14:21-15:23.
73. No final Minutes of the December 3, 2015 Planning Commission meeting were
ever created.
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Bert Hoffman Testimony 16:14-17.
74. At trial, Mr. Watkins testified that he has been on the Planning Commission for
more than 10 years,
James B. Watkins Testimony 177:21-178:1
75. He testified that in his time (on the Planning Commission), the Planning
Commission has never before applied the planning approval criteria to an
undetermined use.
James B. Watkins Testimony 173:19-21
76. The City’s Code treats commercial activities and churches completely differently
in the R-1 zoning district, as the former is to be prohibited and the latter is to be
encouraged.
77. There was nothing in the City’s staff report that suggested that planning approval
could not be granted
Marie York Testimony 35:12-15
78. Plaintiffs were willing to agree to any conditions imposed on their use.
Marie York Testimony 35:19-36-2
79. The only basis for denial in the December 3, 2015 staff report was the religious
status of the applicant
Marie York Testimony 50:4-14, 95:23-96:1
80. Douglas Anderson made the decision that the Association was not a church or
religious facility.
Marie York Testimony 53:11-15; Bert Hoffman Testimony 199:11-201:5
81. Douglas Anderson’s decision meant that City staff would no longer work on the
application during the holdover period, which they would normally do in such
circumstances.
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82. According to the City, Douglas Anderson’s determination of inapplicability of

planning approval negated the need for continued analysis of the rest of the
request.
83. Douglas Anderson made the decision that the Association was not a church or
religious facility.
Marie York Testimony 53:11-15; Bert Hoffman Testimony 199:11-201:5, 206:1-5
84. Nothing in the December 3, 2015 staff report suggested that planning approval
could not be granted.
Marie York Testimony 53:15-54:9
85. Douglas Anderson discussed the religious nature of the applicant with the
Planning Commission.
86. No other applications for planning approval for a church or religious facility have
been denied by the Planning Commission.
Marie York Testimony 61:22-62:5; Bert Hoffman Testimony 17:11-14
87. Traffic Engineer Marybeth Bergin did not suggest any reason at the
predevelopment meeting why the application should be denied based on traffic
issues.
Marybeth Bergin Testimony 116:10-13
88. Traffic Engineer Marybeth Bergin did not suggest any reason at the
predevelopment meeting why the application should be denied based on access
issues.
89. The applicant could have complied with all traffic engineering comments
90. Eloong Drive and Riverside Drive are low volume roadways.
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91. The levels of service at relevant road intersections would not be impacted by the
use.
92. Eloong Drive and Riverside Drive would be able to handle the volume of traffic
generated by the proposed meditation center.
93. There is no rule in the City of Mobile that a church cannot locate on a substandard
street.
Marybeth Bergin Testimony 125:18-22; Bert Hoffman Testimony 29:8-14
94. The proposed meditation center would generate less traffic than if the property
were subdivided for single family homes.
95. The property could have been subdivided into approximately 20 single family
home lots.
96. Using the property for single family homes would potentially have created much
more development than the meditation center.
97. The proposed meditation center would not create traffic safety issues from a
traffic engineering perspective.
98. The width of Eloong Drive was not a reasonable basis to deny the application.
99. The traffic generated by the proposed meditation center would not be a problem
from a traffic engineering perspective.
Marybeth Bergin Testimony 149:9-150:18
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100. The Planning Commission can impose various types of conditions on planning
approval, including conditions related to tree and landscape buffers, lighting
plans, vehicle access, and driveways.
Bert Hoffman Testimony 22:2-13.
101. The Nimityongskuls faced community opposition regarding an application for

another location in the City, 4567 Airport Boulevard.
102. One letter in opposition to the application at 4567 Airport Boulevard stated in
part: “While serving with the Air Force in Vietnam many years ago I had the
occasion to visit Thailand, where there are countless temples, and 2 streets are
filling with Buddhist priests, wearing their colorful orange robes it was a quaint
sight but I had no desire to bring one back to my neighborhood and install him
there.”
103. The Nimityongskuls faced community opposition regarding an application for

another location in the City, 4567 Airport Boulevard.
104. City Planner Bert Hoffman believed that the opposition to that application had
concerns about the Buddhist nature of that facility.
105. City staff recommended denial of that application in part based on it being located
on both a major and minor street, the only two classifications of streets.
106. After City staff recommended denial of that application, the City approved a
Publix grocery store and gas station/convenience store across the street from that
location, which create more traffic on Airport Boulevard.
107. There were no negative comments from City staff about the Plaintiffs’ application
at the predevelopment meeting
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108. Existing land uses can have equal or greater impacts on community character and
traffic issues as compared to new uses, depending on their scale.
CONCLUSIONS OF LAW
1. The Equal Protection Clause “is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). To prove a violation of the Equal Protection Clause, the Plaintiffs must establish
purposeful discrimination by the Defendant, directed at religion, a suspect class. Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Arlington Heights”);
Jean v. Nelson, 711 F.2d 1455, 1485 (11th Cir. 1983).
The Eleventh Circuit has identified three distinct kinds of statutory equal
protection/nondiscrimination violations: (1) a statute that facially differentiates
between religious assemblies or institutions; (2) a facially neutral statute that is
nevertheless “gerrymandered” to place a burden solely on a particular religious
assembly or institution; or (3) a truly neutral statute that is selectively enforced
against one religious denomination as opposed to another. Primera, 450 F.3d at
1308.
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1361
(N.D. Ga. 2012) (footnote omitted) (citing Primera Iglesia Bautista Hispana of Boca Raton, Inc.
v. Broward Cty., 450 F.3d 1295, 1308 (11th Cir. 2006)).
2. Determining whether invidious discriminatory purpose was a motivating factor
“‘demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be
available,’” Stout by Stout v. Jefferson Cty. Bd. of Educ., 882 F.3d 988, 1006 (11th Cir. 2018)
(quoting Arlington Heights, 429 U.S. at 266), including: (a) the series of events leading up to a
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land use decision; (b) the context in which the decision was made; (c) whether the decision
departed from established procedural norms; (d) whether the decision departed from substantive
norms; (e) statements made by the decision-making body; (f) statements made by community
members; (g) reports issued by the decision-making body; (h) whether a discriminatory impact
was foreseeable; and (i) whether less discriminatory avenues were available. Arlington Heights,
429 U.S. at 267; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533
(1993); Chabad Lubavitch of Litchfield Cy., Inc. v. Litchfield Historic Dist. Comm'n, 768 F.3d
183, 199 (2d Cir. 2014); Church of Scientology of Ga., 843 F. Supp. 2d at 1371; TMAA, 349 F.
Supp. 3d at 1190-91. Courts have also specifically focused on government decision-makers’
responsiveness to hostile local residents in determining discriminatory intent. See LeBlanc-
Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995) (Fair Housing Act); Estvanko v. City of
Perry, No. 5:09-CV-137 CAR, 2011 WL 1750232, at *12 (M.D. Ga. May 6, 2011);
Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona, 915 F. Supp. 2d 574, 616-
17 (S.D.N.Y. 2013).
3. Further, Plaintiffs need not demonstrate that there exists a better treated, similarly
situated group of individuals in the City of Mobile in order to prove an Equal Protection or
RLUIPA Nondiscrimination violation. See Chabad Lubavitch, 768 F.3d at 199 (district court
erred in “look[ing] solely to whether the Chabad had identified comparator religious institutions
that were “‘identical in all relevant respects’”); Church of Scientology of Ga., 843 F. Supp. 2d at
1370-76. As the Second Circuit held in the context of a religious land use case, “[w]hile such
evidence is certainly germane to a selective enforcement analysis, it is not necessary to establish
a nondiscrimination claim.” Chabad Lubavitch, 768 F.3d at 199 (emphasis added).
16
4. Discriminatory purpose is demonstrated if a governmental decision-maker
selected a particular course of action at least in part because of, not merely in spite of, its adverse
effects upon an identifiable group; it need not be the sole motivating factor for a governmental
decision-maker’s particular course of action, but it must be a significant factor. Arlington
Heights, 429 U.S. at 265; Church of Scientology of Georgia, Inc., 843 F. Supp. 2d at 1371.
Rarely can it be said that a legislature or administrative body operating under a

broad mandate made a decision motivated solely by a single concern, or even that a
particular purpose was the ‘dominant’ or ‘primary’ one.
Arlington Heights, 429 U.S. at 265; see also Stout by Stout v. Jefferson Cty. Bd. of Educ., 882
F.3d 988, 1006 (11th Cir. 2018) (“A discriminatory purpose exists if “racial discrimination was a
substantial or motivating factor behind enactment of the law.” (quoting I.L. v. Alabama, 739 F.3d
1273, 1286 (11th Cir. 2014) (alteration adopted) (quoting Hunter v. Underwood, 471 U.S. 222,
228 (1985)))); Bolden v. City of Mobile, Ala., 542 F. Supp. 1050, 1072 (S.D. Ala. 1982)
(“discriminatory intent need not be the sole purpose behind the challenged action.”).1
5. Discriminatory motivation can be imputed to governmental decision-makers if
they were “knowingly responsive” to community animus against a protected group. See
LeBlanc-Sternberg, 67 F.3d at 425; TMAA, 349 F. Supp. 3d at 1194-95. “To be sure, only a state
actor can violate the Fourteenth Amendment, but constituent statements and conduct can be
1
This Circuit and its courts have held that “the Fourteenth Amendment is violated when
[the discriminatory purpose] is a ‘substantial’ or ‘motivating’ factor in legislative
decisionmaking.” Johnson v. Miller, 864 F. Supp. 1354, 1372 (S.D. Ga. 1994), aff'd and
remanded, 515 U.S. 900 (1995) (quoting Arlington Heights, 429 U.S. at 265-66; Holifield v.
Stewart, No. CA 18-0026-WS-MU, 2018 WL 3946038, at *18 (S.D. Ala. June 15, 2018), report
and recommendation adopted, No. CV 18-0026-WS-MU, 2018 WL 3945619 (S.D. Ala. Aug. 16,
2018) (citing Underwood) (“‘To establish a violation of the fourteenth amendment in the face of
mixed motives, plaintiffs must prove by a preponderance of the evidence that racial
discrimination was a substantial or motivating factor in the adoption of section 182.’”); Caron
Found. of Fla., Inc. v. City of Delray Beach, 879 F. Supp. 2d 1353, 1367 (S.D. Fla. 2012) (“the
desire to discriminate need not be the sole motivating factor.”).
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relevant in determining the intent of public officials.” Stout by Stout v. Jefferson Cty. Bd. of
Educ., 882 F.3d 988, 1007 (11th Cir. 2018).
6. Intentional discrimination need not be motivated by ill will, enmity, or hostility
toward Plaintiffs or toward Buddhists generally, only that Plaintiffs were treated differently (at
least in part) because of their religion. See Bray v. Alexandria Women's Health Clinic, 506 U.S.
263, 269-70 (1993) (“We do not think that the ‘animus’ requirement can be met only by
maliciously motivated, as opposed to assertedly benign (though objectively invidious),
discrimination against women.”); Floyd v. City of N.Y., 959 F. Supp. 2d 540, 662 (S.D.N.Y.
2013) (“Nor must the discrimination be based on ‘ill will, enmity, or hostility.’”); Cmtys. for
Equity v. Mich. High Sch. Athletic Ass'n, 459 F.3d 676, 694 (6th Cir. 2006) (distinguishing
between “an intent to treat two groups differently” and “an intent to harm”); Garza v. County of
L.A., 918 F.2d 763, 778 n.1 (9th Cir. 1990) (Kozinski, J., concurring in part and dissenting in
part) (“[T]here can be intentional discrimination without an invidious motive.”); Hassan v. City
of N.Y., 804 F.3d 277, 297-98 (3d Cir. 2015), as amended (Feb. 2, 2016) (“Thus, even if NYPD
officers were subjectively motivated by a legitimate law-enforcement purpose (no matter how
sincere), they’ve intentionally discriminated if they wouldn’t have surveilled Plaintiffs had they
not been Muslim.”).
7. Singling out Plaintiffs because they are Buddhist (i.e., determining that the
Buddhist form of worship, a meditation center, does not qualify as a “church or religious
facility” because of the manner of worship)--even if motivated by a sincere attempt to interpret
the City’s Code--satisfies the requirement to prove discriminatory intent. If Plaintiffs make such
a showing of discriminatory motivation, the law at issue is subject to strict judicial scrutiny, such
18
that the law may be upheld only if it furthers a compelling state interest and is narrowly tailored
to accomplish that purpose. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
8. It is the “relevant aspects” of these comparator churches that are relevant, not all
aspects. Id. at 9-10; Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist.
Comm'n, 768 F.3d 183, 199-200 (2d Cir. 2014) (“Moreover, while comparators must exhibit
some similarity to permit meaningful analysis, a requirement that they be ‘identical’ is unduly
restrictive.” See Third Church of Christ, Scientist, 626 F.3d at 670 (surveying various bases for
comparison relied upon by circuits, none of which require comparators to be ‘identical’).”);
Konikov v. Orange Cty., Fla., 410 F.3d 1317, 1327-29 (11th Cir. 2005) (focusing on
“comparable community impact”); Church of Our Savior v. City of Jacksonville Beach, 69 F.
Supp. 3d 1299, 1322-24 (M.D. Fla. 2014) (“Undoubtedly, every location and piece of property is
unique, every CUP application is different, and no two situations are ever going to be exactly the
same. Nevertheless, the Court finds by a preponderance of the evidence that Discovery
Montessori School is a similarly situated comparator . . . .”).
9. This Circuit has “considered various factors to be relevant, such as the level of
impact on the community, zoning status, size, and whether variances were requested.” Maverick
Enterprises, LLC v. Frings, 456 F. App’x 870, 872 (11th Cir. 2012). In addition, “the use of the
proposed development is quite relevant,” as is whether projects sought the same type of
approval. Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006).
10. In Hollywood Community Synagogue, Inc. v. City of Hollywood, Florida, 430 F.
Supp. 2d 1296 (S.D. Fla. 2006), a Jewish organization alleged that a homeowner operating “a
shrine to the Virgin Mary out of her home” located three blocks from the synagogue and that had
“received complaints regarding noise, traffic and garbage not materially distinct from those
19
associated from the Synagogue” was not required to obtain a special exception like the
Synagogue. The Court held that “[a]ny one of these allegations is sufficient to demonstrate that
a similarly situated establishment was treated differently under a facially neutral law.” Id. at
1323. As another court explained:
But ‘what degree of similarity is required for two entities to be considered similarly
situated,’ particularly when the challenged government decision involved multiple
factors? Griffin, 496 F.3d at 1203. With ‘one-dimensional decision[s],’ like public
utility easements or tax assessments as a percentage of market value, comparators
need not be identical twins. Id. One neighborhood resident might be old, rich, and
live in a mansion with a manicured lawn. His next door neighbor might live in a
double-wide trailer, be twenty-five, and have a yard of knee high weeds. But if the
city they live in requires the rich man to grant a thirty-three foot easement to
connect to municipal water, then demands a fifteen foot one from the poor man and
everyone else in the neighborhood, the discrimination—and thus the two neighbors
legally relevant similarities—is palpable.
Xcaliber International, Ltd. LLC v. Georgia, 253 F. Supp. 3d 1220, 1229 (N.D. Ga. 2017).
In Hall v. Jefferson County, 450 So. 2d 792 (Ala. 1984), the Supreme Court held that A
property ownership should and does, bring with it freedom to use one’s possession as the owner
deems appropriate, subject, of course, to reasonable restraints for the general health, safety or
public welfare, and said that, Absent the need for such reasonable impediments, the land owner’s
bundle of rights should remain inviolate.
Dated: March 29, 2019 Respectfully submitted,
STORZER & ASSOCIATES, P.C.
_______________________________
Roman Storzer, admitted pro hac vice
John G. Stepanovich, admitted pro hac vice
Blair Lazarus Storzer, admitted pro hac vice
1025 Connecticut Avenue, NW
Suite 1000
20
Tel: 202-857-9766
Fax: 202-315-3996
John L. Lawler
Post Office Box 47
Mobile, Alabama 36601
Tel: 251-432-8861
Fax: 251-432-8864
21
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing document through the Court’s
electronic filing system on March 29, 2019:
Michael D. Strasavich
Taylor B. Johnson
Burr & Forman, LLP
P.O. Box 2287
Mobile, AL 36652
/s/ Blair Lazarus Storzer

Blair Lazarus Storzer
Attorney for Plaintiffs
22

Nimit V Com Plaintiffs Fof Filed March 29 2019

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Case 1:16-cv-00395-TFM-MU Document 168 Filed 03/29/19 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT

THAI MEDITATION ASSOCIATION OF

CITY OF MOBILE, ALABAMA,

PLAINTIFFS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs Thai Meditation Association of Alabama, Inc., Sivaporn Nimityongskul, Varin

1. Facts Regarding Plaintiffs

2. The Thai Meditation Association of Alabama, Inc., is an Alabama Domestic Non-

Plaintiffs’ Trial Exhibit 95

3. The Thai Meditation Association of Alabama, Inc. was incorporated by the

Plaintiffs’ Trial Exhibit 95

4. Plaintiff Sivaporn Nimityongskul is a Director of the Thai Meditation Association

Joint Trial Exhibit 19

5. Plaintiff Varin Nitimyongskul is an owner of real property commonly known as

Joint Trial Exhibit 19

6. Plaintiff Serena Nimityongskul is an instructor at the Thai Meditation Association

Joint Trial Exhibit 19

7. Plaintiff Prasit Nimityongskul is a Director of the Thai Meditation Association of

Joint Trial Exhibit 19

Joint Trial Exhibit 18

Serena Nimityongskul Testimony 133:3-4

Serena Nimityongskul Testimony 182:11-16

Phra Nicholas Thanissaro Testimony 34:18-21

12. Dhammakaya Meditation is one of 40 Buddhist meditation methods.

Phra Nicholas Thanissaro Testimony 49:17-25

13. In the Dhammakaya Buddhist tradition, meditation is considered religious

Phra Nicholas Thanissaro Testimony 35:14-16

14. Buddhism teaches that “meditation is one component of Buddhism which is of

Phra Nicholas Thanissaro Testimony 37:7-11

Phra Nicholas Thanissaro Testimony 35:3-10

Phra Nicholas Thanissaro Testimony 50:16-21

Phra Nicholas Thanissaro Testimony 50:16-51:2

18. The Meditation Center of Alabama is affiliated with the Dhammakaya

Phra Nicholas Thanissaro Testimony 31:18-20

19. The Dhammakaya Foundation is a network of approximately 200 branches

Phra Nicholas Thanissaro Testimony 31:12-17

Phra Nicholas Thanissaro Testimony 41:21-24

21. One of the objectives of the Dhammakaya organization is to get people to

Phra Nicholas Thanissaro Testimony 38:19-21

Plaintiffs’ Trial Exhibit 1 at Paragraph 18

Joint Trial Exhibit 10

25. Pursuant to 64-3(C)(1), a church or a school is a use explicitly encouraged in the

Joint Trial Exhibit 10

Bert Hoffman Trial Testimony 100:25-101:12

Joint Trial Exhibit 10 at Section 64-12(c)

27. On April 24, 2015, Plaintiff Sivaporen Nimityongskul attended a predevelopment

Sivaporn Nimityongskul Testimony 11:12-25

Sivaporn Nimityongskul Testimony 12:1-9

Sivaporn Nimityongskul Testimony 12:10-17

Sivaporn Nimityongskul Testimony 13:14-23

Defendant’s Trial Exhibit 48

Plaintiffs’ Trial Exhibit 1 at Paragraph 18

Bert Hoffman Testimony 176:22-179:3, 194:5-7.

Plaintiffs’ Trial Exhibit 1 at Paragraph 18

35. At the December 3, 2015 Planning Commission meeting, the Planning

Joint Exhibit 9; Bert Hoffman Testimony 226:10-233:13, 240:25-241:2

Joint Trial Exhibit 36 at 12:21-13:3

Bert Hoffman Testimony 4:8-14

39. At the December 3, 2015, Planning Commission hearing, attorney Bill

Joint Trial Exhibit 36 at 24:14-15

Bert Hoffman Testimony 179:21-25

Bert Hoffman Testimony 181:16-182:11

Marie York Testimony 26:1-3.