Tmca Filed Brief To Appellate Court in Atlanta Oct 2019

RECORD
Case: 19-12418 NO.

Date Filed: 19-12418
10/16/2019 Page: 1 of 76
In The
United States Court Of Appeals

For The Eleventh Circuit
THAI MEDITATION ASSOCIATION OF ALABAMA, INC. (the "Center");
SIVAPORN NIMITYONGSKUL; VARIN NIMITYONGSKUL;
SERENA NIMITYONGSKUL; PRASIT NIMITYONGSKUL,
Plaintiffs - Appellants,
v.
CITY OF MOBILE, ALABAMA,

Defendant - Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
______________
BRIEF OF APPELLANTS
_____________
Roman P. Storzer
Blair L. Storzer
STORZER & ASSOCIATES, PC
1025 Connecticut Ave NW,
Suite 1000
Washington, DC 20036
(202) 857-9766
Counsel for Appellants

GibsonMoore Appellate Services, LLC
206 East Cary Street ♦ P.O. Box 1406 (23218) ♦ Richmond, VA 23219
(804) 249-7770 ♦ www.gibsonmoore.net
Case:
Case:19-12418
19-12418 Date
DateFiled:
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Page:21of of76
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Thai Meditation Association of Alabama, Inc., et al. v. City of Mobile,
Appeal No. 19-12418-B
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
THAI MEDITATION ASSOCIATION OF

ALABAMA, INC., An Alabama Domestic Not-
For-Profit Corporation, SIVAPORN
NIMITYONGSKUL, VARIN
NIMITYONGSKUL, SERENA
NIMITYONGSKUL, and PRASIT
NIMITYONGSKUL,
Appellants, Appeal No. 19-12418-B
vs.
CITY OF MOBILE, ALABAMA,
Appellee.
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT
A. Pursuant to Eleventh Circuit Rule 26.1, counsel for Appellants hereby certifies that the
following persons and entities have or may have an interest in the outcome of this case:
Anderson, Douglas L. -- Counsel for Defendant/Appellee
Burr & Forman, LLP -- Counsel for Defendant/Appellee
City of Mobile, Alabama -- Defendant/Appellee
Johnson, Taylor Barr -- Counsel for Defendant/Appellee
C-1 of 4
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Lawler, John L. -- Counsel for Plaintiffs/Appellants
Moorer, Honorable Terry F., Judge for the United States District Court for the Southern
District of Alabama -- Trial Judge
Nimityongskul, Serena -- Plaintiff/Appellant
Nimityongskul, Sivaporn -- Plaintiff/Appellant
Nimityongskul, Prasit -- Plaintiff/Appellant
Nimityongskul, Varin -- Plaintiff/Appellant
Stepanovich, John G. -- Counsel for Plaintiffs/Appellants
Storzer & Associates, P.C. -- Counsel for Plaintiffs/Appellants
Storzer, Blair Lazarus -- Counsel for Plaintiffs/Appellants
Storzer, Roman P. -- Counsel for Plaintiffs/Appellants
Strasavich, Michael David -- Counsel for Defendant/Appellee
Thai Mediation Association of Alabama, Inc. -- Plaintiff/Appellant
Pursuant to 11th Cir. R. 26.1-3(b), counsel certifies that no publicly traded corporation has an
interest in this proceeding.
B. Pursuant to Federal Rule of Appellate Procedure 26.1(a), Plaintiff-Appellant Thai
Meditation Association of Alabama, Inc. certifies that it is not publicly traded, that it does not have
any parent corporations and that no corporate entity owns 10% or more of its stock.
/s/ Roman Paul Storzer

STORZER & ASSOCIATES, P.C.
Roman P. Storzer
Blair Lazarus Storzer
1025 Connecticut Ave., N.W. Suite 1000
Washington, D.C. 20036
Tel: 202.857.9766
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Attorneys for Plaintiffs-Appellants
iii
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CERTIFICATE OF SERVICE
I hereby certify that I served the above document upon all counsel of record through the
Court’s electronic filing system on July 9, 2019.
/s/ Roman Paul Storzer
iv
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TABLE OF CONTENTS
Page:
CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF CONTENTS ........................................................................................... v
TABLE OF AUTHORITIES ................................................................................. viii
STATEMENT REGARDING ORAL ARGUMENT ............................................xvi
STATEMENT OF JURISDICTION.......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 2
Procedural History ........................................................................................... 3
Statement of Facts ................................................................................................. 4
Standard of Review ............................................................................................. 12
SUMMARY OF THE ARGUMENT ...................................................................... 14
ARGUMENT ........................................................................................................... 15
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

JUDGMENT TO THE CITY ON PLAINTIFFS’ RLUIPA
SUBSTANTIAL BURDENS AND FREE EXERCISE CLAIMS........ 15
A. “Complete Prevention” Is Not a Viable Standard in the

Context of a Permit Denial ....................................................... 18
B. The District Court’s Holding Was Not Faithful to

RLUIPA’s Text ......................................................................... 24
v
1. “Substantial” Is to Be Given Its Ordinary or Natural

Meaning .......................................................................... 24
2. RLUIPA’s Language Contemplates Its Application

to Incidental Burdens ...................................................... 24
3. The District Court’s Requirement That Plaintiffs Be

Religiously Compelled to Use the Specific Property
at Issue in Order for the Denial to Be Substantially
Burdensome Is Contrary to RLUIPA’s Provisions ........ 25
4. The Substantial Burden Provision Applies to a

Claimant’s Ability to Use Specific Property .................. 26
C. The District Court’s Holding Is Contrary to Two Rules of

Statutory Construction .............................................................. 27
1. The District Court’s Holding Renders RLUIPA’s

Substantial Burdens Provision Superfluous with Its
Total Exclusion Provision .............................................. 27
2. RLUIPA’s Terms Should Be Interpreted Broadly ......... 28
D. The Implementation of Land Use Regulation Need Not Be

a Complete Prohibition to Substantially Burden Religious
Exercise ..................................................................................... 29
E. The Uncontested Facts Demonstrate that Summary

Judgment Should Have Been Granted to the Center ................ 30
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

JUDGMENT TO THE CITY ON PLAINTIFFS’ EQUAL
TERMS CLAIM .................................................................................. 33
III. THE COURT FAILED TO APPLY THE CORRECT LEGAL

STANDARDS WHEN IT FOUND THAT THE CITY DID NOT
DISCRIMINATE AGAINST PLAINTIFFS IN VIOLATION OF
RLUIPA’S NONDISCRIMINATION PROVISION AND THE
EQUAL PROTECTION CLAUSE ......................................................... 35
vi
A. The Court Failed to Apply the Arlington Heights Factors ....... 36
1. The series of events leading up to a land use

decision ........................................................................... 36
2. The context in which the decision was made ................. 39
3. Whether the decisionmaking process departed from

established norms, including the City’s actions with
respect to other proposed projects .................................. 40
4. Statements made by the decisionmaking body and

community members ...................................................... 42
5. Reports issued by the decisionmaking body .................. 46
6. Whether a discriminatory impact was foreseeable ......... 46
7. Whether less discriminatory avenues were available ...... 46
B. In a Case of First Impression in this Circuit, the District

Court Erred by Requiring a Showing of a Comparator in a
RLUIPA Nondiscrimination Case and in its Analysis of
the Proffered Comparators ........................................................ 48
IV. THE DISTRICT COURT ERRED IN FINDING AGAINST

PLAINTIFFS ON THEIR NEGLIGENT MISREPRESENTATION
CLAIM.......................................................................................................... 51
V. THE DISTRICT COURT ERRED IN DISMISSING

PLAINTIFFS’ CLAIM UNDER ARFA ............................................. 53
CONCLUSION ........................................................................................................ 56
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF FILING AND SERVICE
vii
TABLE OF AUTHORITIES
Page(s):
Cases:
Adhi Parasakthi Charitable, Med., Educ. Soc’y of N. Am. v.

Township of W. Pikeland,
721 F. Supp. 2d 361 (E.D. Pa. 2010) ............................................................ 49
Andon, LLC v. City of Newport News, Va.,

813 F.3d 510 (4th Cir. 2016) ........................................................................ 21
Bellitto v. Snipes,
935 F.3d 1192 (11th Cir. 2019) .................................................................... 13
Bethel World Outreach Ministries v. Montgomery Cty. Council,

706 F.3d 548 (4th Cir. 2013) ............................................................21, 23, 25
Bowen v. Roy,
476 U.S. 693 (1986) ..................................................................................... 20
Braunfeld v. Brown,
366 U.S. 599 (1961) ..................................................................................... 19
Bryant Bank v. Talmage Kirkland & Co.,

155 So. 3d 231 (Ala. 2014)........................................................................... 51
Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ..................................................................................... 25
Campbell v. Rainbow City, Ala.,

434 F.3d 1306 (11th Cir. 2006) .................................................................... 50
Chabad Lubavitch of Litchfield Cty., Inc. v.

Litchfield Historic Dist. Comm’n,
768 F.3d 183 (2d Cir. 2014) ...................................................................35, 49
Christian Gospel Church, Inc. v. City & Cty. of San Francisco,

896 F.2d 1221 (9th Cir. 1990) ...................................................................... 18
viii
Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) .........................................................................20, 24, 33
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga.,

843 F. Supp. 2d 1328 (N.D. Ga. 2012) ...................................................58, 59
City of Boerne v. Flores,

521 U.S. 507 (1997) ..................................................................................... 54
Civil Liberties for Urban Believers v. City of Chicago,

342 F.3d 752 (7th Cir. 2003) ..................................................................22, 51
Congregation Kol Ami v. Abington Twp.,

No. CIV.A. 01-1919,
2004 WL 1837037 (E.D. Pa. Aug. 17, 2004) ............................................... 27
Congregation Rabbinical Coll. of Tartikov v. Village of Pomona,

915 F. Supp. 2d 574 (S.D.N.Y. 2013) .......................................................... 43
Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona,

138 F. Supp. 3d 352 (S.D.N.Y. 2015) .......................................................... 32
Covenant Christian Ministries, Inc. v. City of Marietta, Georgia,

654 F.3d 1231 (11th Cir. 2011) .................................................................... 33
DiLaura v. Twp. of Ann Arbor,

112 F. Appx. 445 (6th Cir. 2004) ................................................................. 23
Doggrell v. City of Anniston,

Civ. No. 1:16-0239,
2017 WL 4340449 (N.D. Ala. Sept. 29, 2017) ............................................ 54
Duncan v. Walker,
533 U.S. 167 (2001) ..................................................................................... 27
Elsinore Christian Ctr. v. City of Lake Elsinore,

291 F. Supp. 2d 1083 (C.D. Cal. 2003) ........................................................ 27
Emp’t Div., Dep’t of Human Res. of Or. v. Smith,

494 U.S. 872 (1990) ..................................................................................... 20
ix
Estvanko v. City of Perry,

No. 5:09-CV-137 CAR,
2011 WL 1750232 (M.D. Ga. May 6, 2011) ................................................ 43
Eternal Word Television Network, Inc. v.

Sec’y of U.S. Dep’t of Health & Human Servs.,
818 F.3d 1122 (11th Cir. 2016) .................................................................... 20
Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ., Inc.,

830 F.3d 1242 (11th Cir. 2016) .................................................................... 12
Fortress Bible Church v. Feiner,

734 F. Supp. 2d 409 (S.D.N.Y. 2010), aff’d,
694 F.3d 208 (2d Cir. 2012) ......................................................................... 32
Goldman v. Weinberger,
475 U.S. 503 (1986) ..................................................................................... 20
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418, 438 (2006) ............................................................................. 32
Grace Church of N. Cty. v. City of San Diego,

555 F. Supp. 2d 1126 (S.D. Cal. 2008) ........................................................ 26
Grosz v. City of Miami Beach,

721 F.2d 729 (11th Cir. 1983) ...................................................................... 18
Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter,

326 F. Supp. 2d 1140 (E.D. Cal. 2003) ............................................26, 27, 28
Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter,

456 F.3d 978 (9th Cir. 2006) ............................................................22, 23, 26
Hobbie v. Unemployment Appeals Comm’n of Fla.,

480 U.S. 136 (1987) ...............................................................................29, 31
Holston Investments, Inc. B.V.I. v. LanLogistics Corp.,

677 F.3d 1068 (11th Cir. 2012) .................................................................... 13
Holt v. Hobbs,
135 S. Ct. 853 (2015)..................................................................14, 25, 28, 32
x
Hunter v. Underwood,
471 U.S. 222 (1985) ..................................................................................... 35
IMED Corp. v. System Eng’g Assocs. Corp.,

602 So. 2d 344 (Ala. 1992)........................................................................... 55
International Church of Foursquare Gospel v. City of San Leandro,

673 F.3d 1059 (9th Cir. 2011) ...................................................................... 23
Islamic Soc’y of Basking Ridge v. Township of Bernards,

226 F. Supp. 3d 320 (D.N.J. 2016) ............................................................... 49
Jean v. Nelson,
711 F.2d 1455 (11th Cir. 1983) ........................................................14, 36, 48
Jesus Christ is the Answer Ministries, Inc. v. Baltimore Cty.,

915 F.3d 256 (4th Cir. 2019) ..................................................................21, 23
Jimmy Swaggart Ministries v. Bd. of Equalization,

493 U.S. 378 (1990) ..................................................................................... 20
Khan v. Fatima,
680 F.3d 781 (7th Cir. 2012) ........................................................................ 36
Konikov v. Orange Cty.,

410 F.3d 1317 (11th Cir. 2005) .................................................................... 18
Lakewood, Ohio, Congregation of Jehovah’s Witnesses, Inc. v.

City of Lakewood,
699 F.2d 303 (6th Cir. 1983) ........................................................................ 18
LeBlanc-Sternberg v. Fletcher,
67 F.3d 412 (2d Cir. 1995) ........................................................................... 42
Lighthouse Inst. for Evangelism Inc., v. City of Long Branch

100 F. Appx. 70 (3d Cir. 2004) .................................................................... 22
Living Water Church of God v. Charter Tp. of Meridian;,

258 Fed. Appx. 729 (6th Cir. 2007) ............................................................. 23
xi
Livingston Christian Sch. v. Genoa Charter Twp.,

858 F.3d 996 (6th Cir. 2017), cert. denied,
138 S. Ct. 1696 (2018).................................................................................. 23
Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) ..................................................................................... 29
Marks v. City of Chesapeake, Va.,

883 F.2d 308 (4th Cir. 1989) ........................................................................ 43
McDuffie v. City of Jacksonville, Fla.,

625 F. Appx. 521 (11th Cir. 2015) ............................................................... 13
Merritt v. Dillard Paper Co.,

120 F.3d 1181 (11th Cir. 1997) .................................................................... 53
Messiah Baptist Church v. Cty. of Jefferson,

859 F.2d 820 (10th Cir. 1988) ...................................................................... 18
Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004) .............................................................passim
Mintz v. Roman Catholic Bishop of Springfield,

424 F. Supp. 2d 309 (D. Mass. 2006) ........................................................... 28
Nguyen v. United States,

556 F.3d 1244 (11th Cir. 2009) .................................................................... 54
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty.,

450 F.3d 1295 (11th Cir. 2006) .................................................................... 34
Pullman-Standard v. Swint,
456 U.S. 273 (1982) ..................................................................................... 13
Rocky Mountain Christian Church v. Bd. of Cty. Comm’rs of Boulder Cty.,

612 F. Supp. 2d 1163 (D. Colo. 2009) ......................................................... 33
Rocky Mountain Christian Church v. Bd. of Cty. Comm’rs,

613 F.3d 1229 (10th Cir. 2010) .................................................................... 33
xii
Roman Catholic Bishop of Springfield v. City of Springfield,

724 F.3d 78 (1st Cir. 2013).....................................................................22, 23
San Jose Christian College v. City of Morgan Hill,

360 F.3d 1024 (9th Cir. 2004) ..........................................................22, 24, 26
Second Baptist Church of Leechburg v. Gilpin Twp.,

118 F. Appx. 615 (3d Cir. 2004) .................................................................. 22
Seff v. Broward County, Florida,

691 F.3d 1221 (11th Cir. 2012) .................................................................... 12
Sherbert v. Verner,
374 U.S. 398 (1963) ...............................................................................19, 31
Smith v. Allen,
502 F.3d 1255 (11th Cir. 2007) .................................................................... 29
Solantic, LLC v. City of Neptune Beach,

410 F.3d 1250 (11th Cir. 2005) .................................................................... 32
Sossamon v. Texas,
563 U.S. 277 (2011) ..................................................................................... 29
State v. Calumet & Hecla Consol. Copper Co.,

259 Ala. 225, 66 So. 2d 726 (1953) ............................................................. 53
Stock Equip. Co., a Unit of Gen. Signal Corp. v. Tennessee Valley Auth.,
906 F.2d 583 (11th Cir. 1990) ...................................................................... 13
Stout by Stout v. Jefferson Cty. Bd. of Educ.,

882 F.3d 988 (11th Cir. 2018) ...................................................................... 35
Sts. Constantine & Helen Greek Orthodox Church, Inc. v.

City of New Berlin,
396 F.3d 895 (7th Cir. 2005) ..................................................................21, 23
Thomas v. Collins,
323 U.S. 516 (1945) ..................................................................................... 31
xiii
Thomas v. Review Bd. of the Indiana Employment Sec. Div.,

450 U.S. 707 (1981) ..................................................................................... 20
Thompson v. Colbert Cty. Tourism & Convention Bureau,

782 So. 2d 313 (Ala. Civ. App. 2000) .......................................................... 54
Trinity Lutheran v. Comer,

137 S. Ct. 2012 (2017).................................................................................. 20
United States v. Fulford,

662 F.3d 1174 (11th Cir. 2011) .................................................................... 53
Village of Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977) .................................................................................2, 49
Westchester Day Sch. v. Village of Mamaroneck,

504 F.3d 338 (2d Cir. 2007) .............................................................23, 26, 32
World Outreach Conference Ctr. v. City of Chicago,

591 F.3d 531 (7th Cir. 2009) ........................................................................ 21
Xcaliber Int’l, Ltd. LLC v. Georgia ex rel. Carr,

253 F. Supp. 3d 1220 (N.D. Ga. 2017)......................................................... 50
Statutes:
28 U.S.C. § 1291 ........................................................................................................1
28 U.S.C. § 1331 ........................................................................................................1
28 U.S.C. § 1367(a) ...................................................................................................1
42 U.S.C. § 1983 ......................................................................................................35
42 U.S.C. § 2000bb ........................................................................................... 25, 54
42 U.S.C. § 2000bb-1(a) ..........................................................................................55
42 U.S.C. § 2000bb-1(b) ..........................................................................................55
42 U.S.C. § 2000bb(a)(3) .........................................................................................54
xiv
42 U.S.C. § 2000bb(b)(1) ........................................................................................55
42 U.S.C. § 2000bb(b)(2) ........................................................................................55
42 U.S.C. § 2000cc-2(b) ..........................................................................................16
42 U.S.C. § 2000cc-3(g) ..........................................................................................14
42 U.S.C. § 2000cc-5 ...............................................................................................26
42 U.S.C. § 2000cc-5(7)(b)......................................................................................26
42 U.S.C. § 2000cc(a) ................................................................................... 1, 14, 15
42 U.S.C. § 2000cc(a)(2) .................................................................................. 16, 25
42 U.S.C. § 2000cc(a)(2)(C) ....................................................................................16
42 U.S.C. § 2000cc(b)(1) ........................................................................ 1, 14, 33, 49
42 U.S.C. § 2000cc(b)(2) ................................................................................. passim
42 U.S.C. § 2000cc(b)(3)(A) ...................................................................................28
Ala. Code § 6-5-10 ...................................................................................................15
Ala. Code § 6-5-101. ................................................................................................52
Constitutional Provision:
Ala. Const. art. I, § 3.01 ...................................................................................... 2, 15
Ala. Const. art. I, § 3.01(II)(3) .......................................................................... 53, 54
Ala. Const. art. I, § 3.01(V)(a) .................................................................................55
Ala. Const. art. I, § 3.01(V)(b) .................................................................................55
Ala. Const. art. I, § 3.01(VII) ...................................................................................55
xv
U.S. Const. amend. I ................................................................................................14
U.S. Const. amend. XIV ............................................................................................2
Legislative Materials:
146 Cong. Rec. 7774–01, 7776 ................................................................................19
146 Cong. Rec. S7774–S7775 .......................................................................... 26, 50
xvi
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Federal Rule of Appellate Procedure 34(a), Appellants request
oral argument in this matter. This case involves important issues of religious
freedom and discrimination and arises under the United States and Alabama
Constitutions, the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), and Alabama law. Further, this case raises an important issue of first
impression in this Circuit with respect to the interpretation of RLUIPA. Oral
argument will be helpful to assist the Court in developing the record, explaining the
correct legal standards, and ultimately rendering its decision.
xvii
STATEMENT OF JURISDICTION
The district court had federal question jurisdiction under 28 U.S.C. § 1331 for
claims brought pursuant to the federal Constitution and RLUIPA, and supplemental
jurisdiction under 28 U.S.C. § 1367(a) for claims brought pursuant to the laws and
Constitution of the State of Alabama. This Court has jurisdiction pursuant to 28
U.S.C. § 1291. The District Court entered its final judgment on May 28, 2019, Doc.
170, and a notice of appeal was timely filed on June 24, 2019. Doc. 173.
STATEMENT OF THE ISSUES
1) Did the District Court incorrectly hold that Plaintiffs’ religious exercise
must be completely prevented, i.e., that their religion requires them to locate at one
particular site that was denied by the City, in order to prove that it has been
substantially burdened by a discretionary zoning denial, in violation of 42 U.S.C.
§ 2000cc(a) and the Free Exercise Clause of the First Amendment, as alleged in
Counts I and IV of Plaintiffs’ Complaint.
2) Did the District Court incorrectly decide that a nonreligious assembly
use that was similarly situated as to all relevant aspects, which was approved by the
City, was not an appropriate comparator to Plaintiffs’ use under RLUIPA’s Equal
Terms provision, 42 U.S.C. § 2000cc(b)(1), as alleged in Count III, because it was
replacing and expanding a pre-existing facility?
1
3) Whether the District Court erred by failing to apply the factors deemed
relevant in Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252
(1977), with respect to Plaintiffs’ claims that the City discriminated against them on
the basis of religion in violation of RLUIPA’s Nondiscrimination provision, 42
U.S.C. § 2000cc(b)(2), and the Equal Protection Clause of the Fourteenth
Amendment, as alleged in Counts II and V.
4) Whether the District Court erred in its interpretation and application of
Alabama negligent misrepresentation law as alleged in Count VII.
5) Where the plain text of the Alabama Religious Freedom Amendment,
ALA. CONST. art. I, § 3.01, applies strict scrutiny review to any burden on religious
exercise without requiring that such burden be “substantial” in nature, did the
District Court err in injecting into that provision such a limiting requirement (Count
VI)?
STATEMENT OF THE CASE
The individual Buddhist Plaintiffs and the Buddhist organization Thai
Meditation Association of Alabama, Inc. seek to use real property in Mobile,
Alabama as a place of worship. That property is in a zoning district that permits
religious facilities with “Planning Approval,” which has never been denied to any
other religious group. Although attacked by local residents as not being a legitimate
religious use and being told “We don’t want Buddhism” and “This is not a church,
2
this is a Buddhist temple, and we don’t need that. Why are you doing this in our
neighborhood?,” Plaintiffs fully complied with the application process and accepted
all guidance and requests from the City’s planning staff.
However, the City attorney, directly responsive to local residents, decided that
the Buddhist meditation center was not truly religious, advising the City’s Planning
Commission and testifying before the City Council regarding the same, saying “The
application was for Meditation Center of Alabama or whatever. This is not the
Baptist church or the Episcopal church.” After questioning individuals solely about
the religious character of the Association, the Planning Commission denied the
application; and a majority of the City Council predetermined that any appeal would
be rejected. The City issued a decision letter—which the Planning Commission did
not review and did not reflect the Planning Commission’s statements—listing three
post hoc justifications for denial that even the City’s own staff disagrees with.
Plaintiffs challenge this decision as both discriminatory and burdensome to their
religious exercise under the federal and state constitutions and the Religious Land
Use and Institutionalized Persons Act.
Procedural History
Plaintiffs filed a seven-count Complaint on July 26, 2016. Doc. 1. The district
court granted partial summary judgment to Defendant City of Mobile on September
28, 2018 (Doc. 127) on Plaintiffs’ claims under RLUIPA’s Substantial Burdens
3
provision (Count I), Equal Terms provision (Count III), the Free Exercise Clause
(Count IV), and Article I, section 3.01 of the Alabama Constitution (Count VI). Doc.
127 at 62. The case proceeded to trial on Counts II (RLUIPA’s Nondiscrimination
provision), V (Equal Protection Clause), and VII (Alabama state law claim for negligent
misrepresentation). Doc. 169 at 2. On March 22, 2019, following a six-day bench trial,
the district court ruled against the Plaintiffs, stating from the bench that, “I don’t think
this particular place, under these particular circumstances, is the place to put it. That
will be my ruling.” Doc. 185 at 9477:19-21. The court entered its trial opinion and
order on May 24, 2019. Doc. 169.
Statement of Facts
The Nimityongskul family and two Buddhist monks incorporated the Thai
Meditation Association of Alabama, Inc. (the “Association” and, collectively with the
Nimityongskuls, the “Plaintiffs”), an Alabama Domestic Non-Profit Corporation, in
2007 with the stated purpose of “[t]eaching and research into growth and development
of mind and spirit through meditation and to expand the knowledge of Buddhism.”
Doc. 169 ¶ 2; Doc. 166-6 at 6735; Doc. 93-24 at 1-4. Sivaporn Nimityongskul is a
Director of the Association and is an owner, along with Varin Nimityongskul, Serena
Nimityongskul and Prasit Nimityongskul, of real property commonly known as 2410
Eloong Drive in Mobile, Alabama (the “Property”). Doc. 166-1 at 4996. The
Nimityongskuls purchased the Property on August 20, 2015. Id. at 4997.
4
The Association’s first location was at a residential property at 4567 Airport
Boulevard in Mobile, Alabama. Doc. 179 at 8191:12-13; 8283:18-21; Doc. 93-73
¶ 23. The City responded to neighbors’ complaints about its use by issuing
violations against the Plaintiffs because a Buddhist monk was holding Buddhist
teachings for family and friends at that location. Doc. 166-6 at 6686-88; Doc. 179
at 8283:24-8284:25; Doc. 93-73 ¶ 23; Doc. 93-74 ¶¶ 34, 36. When Plaintiffs applied
for planning approval for a religious facility, the City recommended denial in part
because of the proposed location on a major road. Doc. 166-1 at 4670; Doc. 93-13
at 3; Doc. 166-9 at 7893-94. The area’s City Councilman spoke against the
application, citing community opposition. Doc. 179 at 8285:13-8286:1. Local
residents were opposed to the use based on its Buddhist character. See infra,
Argument § III(A)(2).
The Center’s current location is in a shopping center at 3821 Airport
Boulevard in Mobile. Doc. 169 ¶ 6; Doc. 93-73 ¶ 6. It is on a busy street in a
shopping center. Doc. 93-73 ¶¶ 6-8; Doc. 93-75 ¶ 56-57; Doc. 93-79 ¶ 10; Doc. 93-
78 ¶ 27.
The location of a Buddhist meditation center is religiously significant, as the
purpose of meditation is to attain tranquility, serenity and clarity of mind. Doc. 93-
74 ¶ 31; Doc. 93-73 ¶ 5; Doc. 93-75 ¶¶ 58-64; Doc. 93-76 ¶ 6-8. The current
location disrupts meditation and interferes with their religious practices. Doc. 93-
5
75 ¶¶ 54-57, 68; Doc. 93-73 ¶¶ 5, 10; Doc. 93-79 ¶ 10; Doc. 93-78 ¶ 27. The
Center’s present location does not have a place to house Dhammakaya Buddhist
monks that periodically visit, thus inhibiting Plaintiffs’ religious practices. Doc. 93-
75 ¶¶ 65-66; Doc. 93-73 ¶ 16; Doc. 93-79 ¶¶ 5-6; Doc. 93-78 ¶ 28; Doc. 93-74 ¶¶ 21,
33. The small size of the Center’s current location cannot accommodate larger
groups for its teaching events. Doc. 93-73 ¶ 14.
Retreats are also a significant component of Plaintiffs’ religious exercise.
Doc. 93-74 ¶ 32. The Association’s current location lacks space to accommodate
retreat participants, disrupts the atmosphere of the retreat, and interferes with the
development of meditative concentration. Doc. 93-73 ¶ 15.
Because its current facility is not sufficient to meet its needs, the Plaintiffs
searched for a site that would accommodate their religious worship and purchased
the 6.72-acre Property. Doc. 169 ¶ 14; Doc. 179 at 8260:1-25. It is zoned R-1,
which permits a “Church or religious facility” with “Planning Approval” by the
City’s Planning Commission. Doc. 166-1 at 4902; Doc. 93-2 at 30. Prior to
purchasing the Property, Mrs. Nimityongskul and her realtor, William Youngblood,
attended a “predevelopment meeting” with City’s Planning Staff. Doc. 169 ¶ 11.
They were told that the proposed meditation center would be treated as a “house of
worship,” which was permitted on the Property with planning approval. Doc. 166-
1 at 4664, 5031; Doc. 93-5 at 87:8-88:15; Doc. 93-27; Doc. 182 at 9019:11-14. City
6
staff did not question the religious nature of the proposed meditation center. Doc. 169
¶ 11; Doc. 93-5 at 65:1-20.
On September 11, 2015, Mrs. Nimityongskul applied to the City for Planning
Approval, Planned Unit Development (“PUD”), and Subdivision approval (the
“Application”) to permit the Center’s development on the Property. Doc. 153 ¶ w.;
Doc. 169 ¶ 27; Doc. 93-21. The Planning Commission’s staff processed the
Application by preparing a staff report that included comments from various City
departments and setting it for a Planning Commission hearing on October 15, 2015.
Doc. 166-2 at 5128; Doc. 181 at 8616:2-10; Doc. 153 ¶¶ bb, dd; Doc. 93-1. Staff reports
provide the Planning Commission with “the most input in terms of educating the
commission on the various facts and circumstances of each application.” Doc. 183 at
9289:20-22. The October 15 Staff Report recommended the Application be “held over”
to address some technical land use issues. Doc. 153 ¶ dd; Doc. 166-2 at 5128-33; Doc.
180 at 8507:19-25.
Just before the October 15 hearing, certain local residents began communicating
with the City, claiming that a Buddhist meditation center is not a “religious” use, but
rather a “commercial” activity that would not be permitted in the R-1 district
(hereinafter, the “religious issue”). Doc. 153 ¶ ff; Doc. 166-8 at 7495-96; Doc. 182 at
9018:13-9019:2. Local residents again expressed hostility against the Plaintiffs based
on their Buddhist and non-Christian character. See infra, Argument § III(A)(4).
7
At the October 15 hearing, the Planning Commission’s attorney, Doug
Anderson, told Plaintiffs’ counsel that they would need to prove that they were in fact
religious. Doc. 166-2 at 5324:21-5325:18. The City had never done this before. Doc.
180 at 8566:5-14; Doc. 181 at 8785:15-17; Doc. 182 at 9022:10-13. Anderson did not
indicate what type of proof would be sufficient. Doc. 166-2 at 5324:21-5325:7; Doc.
181 at 8785:6-14; Doc. 182 at 9022:6-9; Doc. 183 at 9142:16-25; Doc. 166-9 at 7927.
Plaintiffs’ Application was “held over” until the Planning Commission’s December 3,
2015 hearing. Doc. 166-1 at 4680-4682; Doc. 166-2 at 5128, 5154.
In November 2015, Plaintiffs provided documentation to the City about their
religious practices, along with revised engineering plans addressing all of the items for
revision set forth in the October 15 Staff Report. Doc. 166-4 at 5881-5889; Doc. 180
at 8507:9-8508:20, 8569:6-22, 8570:14-19; Doc. 181 at 8782:16-8783:16, Doc. 182 at
8938:11-8940:17, 9023:11-9024:10; Doc. 183 at 9177:1-13, 9199:5-9. Anderson,
however, determined that the documentation did not establish that the use was religious
and instructed planning staff to recommend denial in the December 3 Staff Report
hearing solely because of the religious issue. Doc. 169 ¶ 44; Doc. 166-1 at 4685; Doc.
181 at 8637:3-8638:7, 8640:21-8642:14, 8784:7-14; Doc. 182 at 8940:18-21; Doc. 183
at 9140:6-19, 9147:1-9148:2.
The December 3 Staff Report stated that the proposed Buddhist meditation
center was not eligible for Planning Approval because Anderson had decided that it
8
was not a church or religious facility, and recommended denial. Doc. 166-2 at 5153-
5154; Doc. 93-22 at 11-12; Doc. 183 at 9200:24-9201:10. The Mobile Zoning Code
requires the determination of a land “use” in order to determine what type of
application is appropriate. Doc. 183 at 9175:19-9176:5, 9187:17-9188:3; Doc. 166-
1 at 4880-81 § 64-12 et seq.; Doc. 183 at 9250:18-24; Doc. 93-5 at 69:3-14; Doc.
166-9 at 7906-907, 7945-946. The recommendation of denial had a profound effect
on the Application: after the recommendation, the staff member drafting the report
ceased substantive analysis, and staff did not provide any proposed conditions that
would allow the Planning Commission to consider such conditions for approval.
Doc. 97-4 at 143:20-144:19; Doc. 183 at 9291:1-9293:5; Doc. 166-9 at 7938-939.
At the December 3 Planning Commission hearing, the Association’s counsel
explained that the proposed Buddhist meditation center is a religious use and facility.
Doc. 166-2 at 5348:14-5349:3, 5360:11-15; Doc. 93-34 at 24:11-15. Nevertheless,
the Planning Commission members’ questions primarily concerned the religious
issue. Doc. 93-34 at 12:10-13, 14:7-14, 15:5-7, 23:4-6, 24:1-2, 25:19-26:1; Doc.
166-2 at 5348, 5350-51, 5359-62, 5367. Anderson spoke about the religious issue.
Doc. 183 at 9154:20-24; Doc. 166-2 at 5363; Doc. 93-34 at 97:20-99:15. Duane
Graham, the attorney for the neighbor-objectors (and a friend of Anderson’s, with
whom he discussed the case, Doc. 183 at 9143:7-23), stated “[w]e believe this is
essentially a commercial activity.” Doc. 93-34 at 30:19-20; Doc. 166-2 at 5366.
9
Included in the package of information provided to Planning Commission were
materials about the Association’s religious nature, Doc. 183 at 9237:9-9241:24,
which Graham referred to during his argument.1 Doc. 166-2 at 5366; Doc. 93-34 at
30:12-20; Doc. 92-16; Doc. 183 at 9143:1-4; Doc. 166-1 at 5033-5127. This
package created “more concern” on the part of the City. Doc. 183 at 9199:11-14.
Most of the discussion by objectors was about the religious issue. Doc. 183 at
9307:5-17.
Just prior to the conclusion of the second Planning Commission meeting and
immediately after describing the use as a “business,” Anderson switched tactics and
cursorily told the Planning Commission “to consider the use as a planning approval
appropriate use and to make their decision based on that.” Doc. 93-6 at 16:5-12;
Doc. 166-2 at 5386-87; Doc. 181 at 8800:6-14.2 This has never occurred before.
Doc. 183 at 9303:19-9304:19.
Planning Commission members did not discuss the Application during the
deliberations. Doc. 166-2 at 5387-89. They did not state any reasons for denial.
Doc. 166-2 at 5387-89; Doc. 181 at 8830:7-12, 8846:24-8847:20; Doc. 183 at
1
Most of Mr. Graham’s statement related to the religious issue, not to “land
use” concerns. Doc. 183 at 9245:23-9250:17; Doc. 166-2 at 5363:3-5367:3.
2
This was procedurally improper because under the City’s Code, such
reversal could only have been made by the Board of Adjustment, and not by the
Planning Commission or its attorney. Doc. 93-6 at 18:2-11, 18:20-21:22; Doc. 166-
9 at 7892.
10
9163:25-9164:24, 9308:1-3. Just prior to the motion for denial, a Planning
Commission staffer, Richard Olsen, stated:
[T]he subdivision was recommended for denial because it was affiliated

based on commercial-type subdivision or nonresidential use subdivision
because the use was not single family residential. We recommend a
denial.
Doc. 166-2 at 5388-89 (emphasis added); Doc. 181 at 8829:7-11. The Planning
Commission then voted to deny.
Richard Olsen drafted an email of purported reasons for the denial and sent
them to Anderson for approval, which were “1) the proposed use was not compatible
with the surrounding area; 2) access to the site is not adequate for the proposed use;
and 3) the proposed use would increase traffic on a very substandard street.” Doc.
166-2 at 5162; Doc. 93-48; Doc. 93-4 at 69:22-70:1; Doc. 182 at 9027:11-19,
9028:3-9029:5, 9032:24-25. Olsen’s “reasons” were “somewhat generalized
language” that has been used with other denials. Doc. 93-6 at 87:3-12; Doc. 182 at
8848:6-11; Doc. 183 at 9165:8-17. Anderson told Olsen: “Use what is in the email,
not the staff report”; in other words, not the religious issue that was actually the
primary focus at the December 15 hearing. Doc. 93-48; Doc. 166-6 at 6676-80; Doc.
182 at 8850:6-10, 8943:10-15, 9032:24-25; Doc. 183 at 9308:4-10. Typically, after
a Planning Commission meeting, staff creates a “results agenda” that shows how
each case was decided and what the reasons for the decision were. Doc. 182 at
8850:11-8851:18. This did not happen here. Id.
11
Plaintiffs appealed the Planning Commission’s decision to the Mobile City
Council. Prior to the hearing of the Appeal, four of the seven City Council members
corresponded with objectors who described the meditation center as a business, telling
them that they would vote to deny the appeal. Doc. 166-8 at 7458; see also Doc. 184
at 9351:4-10; Doc. 166-8 at 7458, 7460-7477, 7485, 7498-7501. The City Council
denied Plaintiffs’ appeal on January 19, 2016. Doc. 169 ¶ 54; Doc. 166-1 at 5004.
The religious issue dominated the discussion at the City Council hearing, with
Anderson opining, “This is not a religious facility. The application was for Meditation
Center of Alabama or whatever. This is not the Baptist church or the Episcopal church.”
See § III(B)(4) infra; Doc. 166-1 at 5026; Doc. 166-2 at 5216, 5247; Doc. 183 at 9167:2-
9169:6.
Standard of Review
Plaintiffs appeal the district court’s grant of summary judgment as to Counts I,
III, IV, and VI. The Eleventh Circuit “reviews a district court’s grant of summary
judgment de novo, applying the same legal standards used by the district court.” Seff v.
Broward Cty., Fla., 691 F.3d 1221, 1223 (11th Cir. 2012). “In deciding whether a
material disputed fact precludes summary judgment, a court generally must ‘view all
evidence and make all reasonable inferences in favor of the party opposing summary
judgment.’” Fla. Int'l Univ. Bd. of Trustees v. Fla. Nat'l Univ., Inc., 830 F.3d 1242,
1252 (11th Cir. 2016) (citation omitted).
12
With respect to Counts II and V, a court’s findings regarding discriminatory
intent are normally factual determinations that may be overturned only if they are
“clearly erroneous.” McDuffie v. City of Jacksonville, Fla., 625 F. Appx. 521, 524
(11th Cir. 2015) (citing Pullman-Standard v. Swint, 456 U.S. 273, 290 (1982)). In
this case, however, the district court’s findings are defective in two respects. First,
they misstate the applicable law, as described below. Doc. 169 at 18-19.
Conclusions of law, or of statutory interpretation are reviewed de novo. Bellitto v.
Snipes, 935 F.3d 1192, 1197-1198 (11th Cir. 2019). Second, the trial opinion fails
to apply the governing Arlington Heights factors. Doc. 169 at 22-23. It did not make
findings of fact “with enough specificity for a reviewing court to identify the factual
findings upon which the court’s legal conclusions are based.” Cf. Stock Equip. Co.,
a Unit of Gen. Signal Corp. v. Tennessee Valley Auth., 906 F.2d 583, 592 (11th Cir.
1990).
Plaintiffs’ appeal as to Count VII should be reviewed using the clear error
standard for the first element (a factual determination), the de novo standard for the
second element (a legal determination), and the de novo standard for the third and
fourth elements (the application of law to facts). Holston Investments, Inc. B.V.I. v.
LanLogistics Corp., 677 F.3d 1068, 1070 (11th Cir. 2012) (“A court’s application of
law to facts also receives de novo review.”).
13
SUMMARY OF THE ARGUMENT
The District Court’s grant of summary judgment to Defendant should be
reversed because its conclusion that Plaintiffs must demonstrate a “complete
prohibition” on Plaintiffs’ religious exercise, and that anything less is a mere
“inconvenience,” is contrary to established precedent in this Circuit, and sister
Circuits, as to Plaintiffs’ claim under RLUIPA’s “Substantial Burdens” provision,
42 U.S.C. § 2000cc(a), and the First Amendment’s Free Exercise Clause. This
narrow reading of the statute contravenes 42 U.S.C. § 2000cc-3(g), which provides
that RLUIPA “shall be construed in favor of a broad protection of religious exercise,
to the maximum extent permitted by the terms of this chapter and the Constitution.”
See Holt v. Hobbs, 135 S. Ct. 853, 859 (2015) (discussing same).
The court also erred in finding that Plaintiffs did not prevail on their RLUIPA
Equal Terms, 42 U.S.C. § 2000cc(b)(1), claim. Plaintiffs demonstrated the existence
of a similarly situated nonreligious assembly comparator use. The court erred in
rejecting this comparator, which was comparable in relevant aspects. See Midrash
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1231 (11th Cir. 2004).
With respect to Plaintiffs’ claims under RLUIPA’s Nondiscrimination
provision, 42 U.S.C. § 2000cc(b)(2), and the Equal Protection Clause, the court
failed to apply the relevant Arlington Heights factors, which analyzes a broad array
of circumstantial and direct evidence to determine discriminatory intent. Jean v.
14
Nelson, 711 F.2d 1455, 1485-1486 (11th Cir. 1983). It found that “the circumstantial
evidence does not support a finding of discriminatory intent based on the Arlington
Heights factors” (Doc. 169 at 24) but did not actually apply those factors. The court
also erred in relying in holding that a comparator is required to establish a selective
enforcement claim made pursuant to RLUIPA’s Nondiscrimination provision, 42
U.S.C. § 2000cc(b)(2).
The district court erroneously held that Plaintiffs’ claim under Alabama law
for negligent misrepresentation against the Defendants requires “an intent to
deceive,” and that the statutory factors set forth in Alabama Code § 6-5-10 and
relevant case law were not met.
Finally, the court incorrectly held the Alabama Religious Freedom
Amendment, ALA. CONST. art. I, § 3.01, only applies to “substantial” burdens on
religious exercise, despite such requirement having been intentionally omitted from
its plain text.
ARGUMENT
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

JUDGMENT TO THE CITY ON PLAINTIFFS’ RLUIPA
SUBSTANTIAL BURDENS AND FREE EXERCISE CLAIMS.
The district court granted summary judgment to the City on Plaintiffs’ claim
brought under RLUIPA’s “Substantial Burdens” provision, 42 U.S.C. § 2000cc(a),
which requires that substantial burdens on religious exercise imposed by land use
15
regulation are subject to strict scrutiny review, and the First Amendment’s Free
Exercise Clause.3 Doc. 127 at 37, 55. The jurisdictional requirements of 42 U.S.C. §
2000cc(a)(2) were met, as the denial was made pursuant to a system of individualized
assessments. Doc. 127 at 20; 42 U.S.C. § 2000cc(a)(2)(C). The court then decided that
Plaintiffs did not establish that the denial substantially burdened their religious exercise.
Doc. 127 at 37; see 42 U.S.C. § 2000cc-2(b). As such, the court did not rule on whether
the denial was the least restrictive means of achieving a compelling governmental
interest. Id.
The district court rejected the City’s contention that the Plaintiffs’ proposed use
was not religious in nature. Doc. 127 at 22-23 (“the alleged purpose of teaching
Dhammakaya meditation falls squarely within RLUIPA’s definition of ‘religious
exercise.’”). The Center’s mission is “to help spread Dhammakaya meditation, . . .
which is the biggest Buddhist sect in Thailand.” Id. at 22 (citations omitted). The court
correctly rejected the City’s argument that such activity was not religious exercise
because of certain statements made by Plaintiffs that Buddhist meditation was open to
all. Doc. 127 at 23.
3
The court granted summary judgment to the City on Plaintiffs’ Free Exercise
claim for essentially the same reasons as for the RLUIPA Substantial Burdens claim.
See Doc. 127 at 55.
16
However, the district court’s decision4 that the burdens resulting from the
City’s denial were not “substantial” in nature derived from its holding that a plaintiff
must show that its religious exercise either is “completely prevent[ed]” or that the
regulation “requires participation in an activity prohibited by religion.” Doc. 127 at
24. (The latter standard is not at issue in this case.) See also id. at 29 (requiring
Plaintiffs to prove that “this particular site” is religiously unique). The sole question,
according to the court, is whether the denial of Planning Approval constituted a
“complete prohibition” on Plaintiffs’ religious exercise, and that anything less is a
mere “inconvenience.” See id. at 24, 36-37; see also id. at 36 (“whether Defendant
has imposed pressure so significant as to require Plaintiffs to forego their religious
beliefs”).
That standard is unsupported by the text of RLUIPA and other decisions
interpreting its terms. The lower court’s suggestion that any burden less than a
“complete[]” prohibition is a mere “inconvenience on religious exercise” or
“incidental effect on religious exercise” was erroneous, and the undisputed material
facts demonstrate that summary judgment should have been granted to the Plaintiffs
under the correct standard.
4
The court held that “[t]he question of ‘substantial burden’ is a ‘question of
law for courts to decide.’” Doc. 127 at 24.
17
A. “Complete Prevention” Is Not a Viable Standard in the Context of a

Permit Denial.
The district court relied on this Court’s decision in Midrash Sephardi, 366
F.3d at 1227, especially its use of the phrase “complete prevention.” There is a
critical distinction between the type of challenge at issue in Midrash and the
challenge here. In Midrash, and the Free Exercise cases relied upon therein, the
plaintiffs challenged either zoning ordinances that prohibited the religious land use
at issue in a particular zoning district, or the requirement to merely apply for a land
use permit. See id. at 1227 n.11; Grosz v. City of Miami Beach, 721 F.2d 729, 739
(11th Cir. 1983) (religious uses excluded from RS-4 zone); Christian Gospel
Church, Inc. v. City & Cty. of San Francisco, 896 F.2d 1221, 1223 (9th Cir. 1990)
(conditional use permit requirement); Messiah Baptist Church v. Cty. of Jefferson,
859 F.2d 820, 823 (10th Cir. 1988) (religious uses prohibited in A-2 zone);
Lakewood, Ohio, Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood,
699 F.2d 303, 305 (6th Cir. 1983) (church buildings prohibited in R-2 district). See
also Konikov v. Orange Cty., 410 F.3d 1317, 1323-24 (11th Cir. 2005) (“an
application requirement does not impose a substantial burden”). None of these cases
involved the denial of a land use permit where the use was permitted in the zoning
district with discretionary approval. As described below, other Circuits have
distinguished these challenges to neutral and generally applicable ordinances with
challenges to discretionary permit denials.
18
There is good reason for this. When a law is neutral and generally applicable,
concerns of arbitrary, discriminatory or burdensome enforcement are greatly
diminished. When every religious organization is equally prohibited from a zoning
district, or equally required to apply for a permit, the potential for unconstitutional
or arbitrary treatment is significantly lessened. On the other hand, when exceptions
can and have been made, or where the decisions are left to the discretion of a political
body such as a City Council or an appointed zoning board, the potential for
burdensome mistreatment of minority, unfamiliar religious groups is much greater.
Additionally, where laws are truly neutral and generally applicable, religious
landowners are on notice that their use is forbidden, or that an application is
necessary, and courts view such knowledge as evidence that any burden may be seen
as self-imposed.
These decisions flow directly from the Supreme Court’s Free Exercise
precedents. See 146 CONG. REC. 7774–01, 7776 (daily ed. July 27, 2000)
(“substantial burden” “is not intended to be given any broader interpretation than the
Supreme Court’s articulation of the concept of substantial burden or religious
exercise”); Braunfeld v. Brown, 366 U.S. 599, 609 (1961) (statute prohibiting retail
sales on Sundays did not violate the Free Exercise Clause); Sherbert v. Verner, 374
U.S. 398, 406 n.6 (1963) (in conducting individualized assessment of claimant’s
request for unemployment compensation, state could not deny her benefits because
19
of her religious beliefs precluding her from working on Saturdays); Thomas v.
Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981) (holding
for plaintiff where there was individualized assessment of the plaintiff’s religious
reasons for quitting his job in an unemployment compensation case); Goldman v.
Weinberger, 475 U.S. 503, 504 (1986) (regulation preventing Air Force members
from wearing headgear indoors did not violate Free Exercise Clause); Bowen v. Roy,
476 U.S. 693, 703 (1986) (upholding “wholly neutral” and “uniformly applicable”
statutory requirement conditioning welfare benefits on the provision of a Social
Security number); Emp’t Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872,
882 (1990) (state prohibition against peyote use was a neutral law of generally
applicability and did not violate Free Exercise Clause); Jimmy Swaggart Ministries
v. Bd. of Equalization, 493 U.S. 378, 392 (1990) (collection of a generally applicable
tax did not impose a substantial burden); Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520, 534 (1993) (animal sacrifice ordinance that “target[ed]
religious conduct for distinctive treatment” violated Free Exercise Clause); Trinity
Lutheran v. Comer, 137 S. Ct. 2012, 2024 (2017) (denying Christian preschool’s
application for public grant due to its religious character violated Free Exercise
Clause); cf. Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health
& Human Servs., 818 F.3d 1122, 1148 (11th Cir. 2016) (no substantial burden where
plaintiffs are only required to fill out a form or write a letter seeking religious
20
accommodation), vacated on other grounds, No. 14-12696-CC, 2016 WL 11503064
(11th Cir. May 31, 2016), modified on other grounds, No. 14-12696, 2016 WL
11504187 (11th Cir. Oct. 3, 2016).
Other Circuits have addressed this distinction in several ways. The Fourth
Circuit has focused on whether the religious applicant could “reasonably expect” to
receive discretionary approval. Compare Bethel World Outreach Ministries v.
Montgomery Cty. Council, 706 F.3d 548, 558 (4th Cir. 2013) (“Bethel”) (district
court erred in holding that County did not impose a substantial burden; considered
whether church had a reasonable expectation of constructing its building in a
permitted zone); and Jesus Christ is the Answer Ministries, Inc. v. Baltimore Cty.,
915 F.3d 256, 261 (4th Cir. 2019) (same); with Andon, LLC v. City of Newport News,
Va., 813 F.3d 510, 516-516 (4th Cir. 2016) (finding no reasonable expectation when
church use was not permitted on property). The Seventh Circuit’s analysis has relied
on the municipality’s conduct to determine whether a denial was substantially
burdensome, as opposed to the requirement that churches obtain a permit. Compare
Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396
F.3d 895, 900 - 901 (7th Cir. 2005) (finding a substantial burden related to denial of
individualized rezoning request); and World Outreach Conference Ctr. v. City of
Chicago, 591 F.3d 531, 534 (7th Cir. 2009) (“a state that has a system for granting
individual exemptions from a general rule must have a compelling reason to deny a
21
religious group an exemption”); with Civil Liberties for Urban Believers v. City of
Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (“C.L.U.B.”) (ordinance requiring
churches to obtain special use permit to locate in business areas was not a substantial
burden). The Ninth Circuit has also ruled in favor of religious applicants that have
been denied discretionary permits, and against an entity that refused to follow the
required procedures. Compare San Jose Christian College v. City of Morgan Hill,
360 F.3d 1024, 1035 (9th Cir. 2004) (“SJCC”) (no substantial burden when plaintiff
did not submit a complete application for a zoning amendment); with Guru Nanak
Sikh Soc’y of Yuba City v. Cty. of Sutter, 456 F.3d 978, 981 (9th Cir. 2006) (“Guru
Nanak II”) (denial of Sikh temple’s conditional use permit was a substantial burden).
Similarly, the First Circuit held that the enactment of an ordinance designating a
Church as a single-parcel historic district and requiring it to seek permission to make
exterior alterations was not a substantial burden, while suggesting that if such
permission was denied, it could be. Roman Catholic Bishop of Springfield v. City of
Springfield, 724 F.3d 78, 99 (1st Cir. 2013). The Third Circuit held that an ordinance
prohibiting churches in a city’s “C-1” zoning district and a “mandatory tap-in”
ordinance were neutral. See Lighthouse Inst. for Evangelism Inc., 100 F. Appx. at
75; Second Baptist Church of Leechburg v. Gilpin Twp., 118 F. Appx. 615, 618 (3d
Cir. 2004) (Free Exercise case). The Sixth Circuit decided a trio of permit-denial
cases—one successful and two not—by engaging in a fact-intensive review of the
22
burdens on the organizations at issue. Living Water Church of God v. Charter Tp.
of Meridian; 258 Fed. Appx. 729 (6th Cir. 2007); DiLaura v. Twp. of Ann Arbor,
112 F. Appx. 445, 446 (6th Cir. 2004); Livingston Christian Sch. v. Genoa Charter
Twp., 858 F.3d 996, 1006 (6th Cir. 2017), cert. denied, 138 S. Ct. 1696 (2018).
A pattern emerges: challenges to general prohibitions on religious use and
requirements to apply for a permit are usually rejected under standards similar to
that used in Midrash, while courts review the specific burdens on an organization’s
religious exercise with respect to denials of applications for uses allowed by
discretionary permits. See Bethel, 706 F.3d at 558; Jesus Christ, 915 F.3d at 261-
62, Guru Nanak II, 456 F.3d at 990-92; International Church of Foursquare Gospel
v. City of San Leandro, 673 F.3d 1059, 1067-70 (9th Cir. 2011); Westchester Day
Sch. v. Village of Mamaroneck, 504 F.3d 338, 351-353 (2d Cir. 2007) (“WDS”); Sts.
Constantine, 396 F.3d at 900-901; Roman Catholic, 724 F.3d at 97-100; DiLaura,
112 F. Appx. at 446.
The district court erred by applying the “complete prevention” standard used
in ordinance prohibition cases such as Midrash to this permit-denial case where the
use is permitted with discretionary review. While questioning whether a religious
use is permitted in other zoning districts (as opposed to being “completely
prevented”) may be appropriate in a challenge to a prohibition in one district, courts
do not generally apply that standard in reviewing an individualized permit denial.
23
Appellants respectfully submit that this Circuit should not adopt the district court’s
standard and be the only jurisdiction that does not engage in a fact-specific inquiry
into whether a denial of a permit for a use allowed within a zoning district
substantially burdens a church’s religious exercise.
B. The District Court’s Holding Was Not Faithful to RLUIPA’s Text.
“Any exercise of statutory interpretation begins first with the language of the
statute in question.” Midrash, 366 F.3d at 1226.
1. “Substantial” Is to Be Given Its Ordinary or Natural Meaning.
The Eleventh Circuit gives “substantial burden” its “ordinary” or “natural”
meaning. Id. The Ninth Circuit held: “a ‘substantial burden’ on ‘religious exercise’
must impose a significantly great restriction or onus upon such exercise.” San Jose,
360 F.3d at 1034. Proving that a burden is “substantial” therefore does not require
demonstrating that it is “complete” or “absolute,” but rather “significant.”
2. RLUIPA’s Language Contemplates Its Application to Incidental

Burdens.
The district court’s holding that a substantial burden requires “something
more than an incidental effect on religious exercise” is wrong for two reasons. First,
the denial of Plaintiffs’ Application was not the “incidental” effect of a neutral and
generally applicable law, see Lukumi, 508 U.S. at 531, but an individualized
determination to disallow this specific religious exercise. Second, RLUIPA states
that its Substantial Burdens provision applies “even if the burden results from a rule
24
of general applicability,” where the burden would affect interstate commerce.5 42
U.S.C. § 2000cc(a)(2) (emphasis added); cf. Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682, 706 (2014) (noting same with respect to the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq.); Holt, 135 S. Ct. at 859-
860 (same with respect to RLUIPA).
3. The District Court’s Requirement That Plaintiffs Be Religiously

Compelled to Use the Specific Property at Issue in Order for the
Denial to Be Substantially Burdensome Is Contrary to
RLUIPA’s Provisions.
The district court based its decision on the fact that the Plaintiffs did not
demonstrate that they were religiously compelled to use the Property as the only
location on which it could engage in religious exercise. See Doc. 127 at 29 (Plaintiffs
“must present evidence of land use characteristics specifically unique to this
particular site.”); id. (requiring “proof that their religion requires them to locate at
this particular site”).6
Again, this is directly contrary to RLUIPA’s text, which states that “[t]he term
‘religious exercise’ includes any exercise of religion, whether or not compelled by,
5
The undisputed facts demonstrate that the construction and use of the
Plaintiffs’ Buddhist meditation center would affect interstate commerce. Doc. 93-
73 ¶ 37; Doc. 97-16 ¶ 5; see Bethel, 706 F.3d at 555 (“building a church on its
property . . . clearly affects interstate commerce.”).
6
The lower court failed to acknowledge the distinction between the facial
challenge in Midrash and the permit-denial challenge here. See Midrash, 366 F.3d
at 1228.
25
or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5 (emphasis added);
see Midrash, 366 F.3d at 1226; Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter,
326 F. Supp. 2d 1140, 1151 (E.D. Cal. 2003) (“Guru Nanak I”) (“The use of the land
does not have to be a ‘core religious practice.’”), aff'd, 456 F.3d 978 (9th Cir. 2006).
4. The Substantial Burden Provision Applies to a Claimant’s

Ability to Use Specific Property.
Nor was the lower court’s decision consistent with section 2000cc-5(7)(B) of
RLUIPA, which states: “The use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be religious exercise of the
person or entity that uses or intends to use the property for that purpose.” Because
Plaintiffs were completely prevented from using the Property as a place of worship,
the burden was complete and, at the very least, “substantial.” Such an understanding
was intended by Congress: “The right to build, buy, or rent [in] a [physical] space is
an indispensable adjunct of the core First Amendment right to assemble for religious
purposes.” 146 CONG. REC. S7774–S7775 (joint statement of Sen. Hatch and Sen.
Kennedy).
Lower courts applying this provision agree. See WDS, 504 F.3d at 349 (“a
complete denial of the school’s application might be indicative of a substantial
burden.”); SJCC, 360 F.3d at 1034 (“[i]nasmuch as [the Plaintiff] intends to convert
the Property from hospital use to a place for religious education, it appears that a
‘religious exercise’ is involved in this case.”); Grace Church of N. Cty. v. City of
26
San Diego, 555 F. Supp. 2d 1126, 1135 (S.D. Cal. 2008) (“Church’s intent to utilize
and improve the Via Frontera property falls within RLUIPA’s definition of religious
exercise.”); Congregation Kol Ami v. Abington Twp., No. CIV.A. 01-1919, 2004
WL 1837037, at *8 (E.D. Pa. Aug. 17, 2004) (“several cases decided under the
RLUIPA that have found that preventing a church from developing a particular
property is in fact a substantial burden on free exercise”), amended on denial of
reconsideration, No. 01-1919, 2004 WL 2137819 (E.D. Pa. Sept. 21, 2004); Guru
Nanak I, 326 F. Supp. 2d at 1151 (“[t]he question then becomes whether such
exercise is ‘substantially burdened’ by defendants’ decision to prevent plaintiff from
using its land for religious exercise.” (emphasis added)); Elsinore Christian Ctr. v.
City of Lake Elsinore, 291 F. Supp. 2d 1083, 1090-91 (C.D. Cal. 2003) (same), rev’d
on other grounds, 197 Fed. Appx. 718 (9th Cir. 2006).
C. The District Court’s Holding Is Contrary to Two Rules of Statutory

Construction.
Two rules of statutory construction, one general and one specific to RLUIPA,
also strongly counsel in favor of reversal.
1. The District Court’s Holding Renders RLUIPA’s Substantial

Burdens Provision Superfluous with Its Total Exclusion
Provision.
It is “a cardinal principle of statutory construction” that “a statute ought, upon
the whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant.” Duncan v. Walker, 533 U.S. 167, 174
27
(2001). By holding that no burden caused by a permit denial is substantial unless
the Plaintiffs can prove that they can worship nowhere else within the City (Doc.
127 at 24, 29), the district court rendered the Substantial Burdens provision
superfluous with section 2000cc(b)(3)(A) of RLUIPA, which forbids governments
from “impos[ing] or implement[ing] a land use regulation that—(A) totally excludes
religious assemblies from a jurisdiction; . . . .” (Emphasis added.) See Midrash, 366
F.3d at 1227 (finding that Seventh Circuit’s definition of “substantial burden” as one
that makes religious exercise effectively impracticable “would render § b(3)'s total
exclusion prohibition meaningless.”); Guru Nanak I, 326 F. Supp. 2d at 1153-54
(“such a reading would inappropriately fuse the ‘substantial burden’ prong of
RLUIPA with the narrower ‘exclusion limitation’ provision.”).
2. RLUIPA’s Terms Should Be Interpreted Broadly.
To the extent that RLUIPA does not provide clear guidance as to what
constitutes a “substantial” burden,7 section 2000cc-3(g) requires that its provisions
“shall be construed in favor of a broad protection of religious exercise, to the
maximum extent permitted by the terms of this chapter and the Constitution.” See
Holt, 135 S. Ct. at 860 (discussing same).
See Mintz v. Roman Catholic Bishop of Springfield, 424 F. Supp. 2d 309, 319
7
(D. Mass. 2006) (describing “definitional fluidity” of “substantial burden” in

RLUIPA).
28
D. The Implementation of Land Use Regulation Need Not Be a Complete

Prohibition to Substantially Burden Religious Exercise.
The district court held that there were two types of burdens on religious
exercise: regulation that “completely prevents” religious exercise, and mere
“inconveniences” (Doc. 127 at 24), which ignores this Court’s holding that “a
substantial burden can result from pressure that tends to force adherents to forego
religious precepts . . . .” Midrash, 366 F.3d at 1227 (emphasis added); id. (“a
‘substantial burden’ is akin to significant pressure which directly coerces the
religious adherent to conform his or her behavior accordingly” (emphasis added)).
See Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141 (1987)
(substantial burden exists when government puts “substantial pressure on an
adherent to modify his behavior and to violate his beliefs,” (emphasis added));
Thomas, 450 U.S. at 718 (same); Lyng v. Northwest Indian Cemetery Protective
Ass'n, 485 U.S. 439, 450 (1988) (regulation that has a “tendency to coerce
individuals into acting contrary to their religious beliefs” could violate the Free
Exercise Clause (emphasis added)); see also Smith v. Allen, 502 F.3d 1255, 1277
(11th Cir. 2007) (“the government action must significantly hamper one’s religious
practice.” (emphasis added)), abrogated on other grounds sub nom, Sossamon v.
Texas, 563 U.S. 277 (2011). None of these formulations requires a complete
prohibition.
29
E. The Uncontested Facts Demonstrate that Summary Judgment Should

Have Been Granted to the Center.
The undisputed facts demonstrate the religious hardships that Plaintiffs face.
The Center’s location is completely inadequate for Plaintiffs’ religious exercise, as
a serene environment is critically important.8 Doc. 93-78 ¶ 27. “[C]ommercial
area[s] interfere[] with the proper development of meditative concentration, known
as jhana in Pali, which is an essential element for progress in following Buddha’s
path for liberation.” Id.; Doc. 93-79 ¶ 10 (describing religious significance of a
“peaceful location” for meditation); Doc. 93-74 ¶ 31 (“Buddhist scriptures and
tradition, going back to the Buddha himself, instruct us that a serene and quiet
location is the proper place for meditative practice.”); Doc. 93-75 ¶ 61 (same). The
Association’s current facilities do not provide this seclusion. Doc. 93-73 ¶¶ 4, 8-9;
Doc. 93-75 ¶ 57. The noise is especially disturbing to new attendees. Doc. 97-16
¶ 9; Doc. 97-17 ¶ 5.
The spatial limitations at the current location are especially burdensome. Doc.
93-75 ¶ 67; Doc. 93-73 ¶¶ 13-14. The Association cannot conduct Dhammakaya
meditation retreats at their current facilities and which the Property would
accommodate. Doc. 93-73 ¶ 15; Doc. 93-74 ¶ 32; Doc. 93-75 ¶ 42.
8
This is also why the business districts, the only zoning districts where
religious use is permitted by right, are not appropriate. Doc. 92-12 at 146.
30
The Center does not have an appropriate location for visiting monks to reside.
Doc. 93-73 ¶ 16; Doc. 93-75 at 65. Monks are “severely limited in [their] ability to
attend and serve the [Center].” Doc. 93-78 ¶ 28.
Preventing the Plaintiffs from exercising their religion in these various ways
is more than a “mere inconvenience”; it constitutes a substantial burden. By
focusing on whether their religious exercise was completely prohibited in the City
and whether the Property was religiously unique, the district court failed to account
for the significance of these burdens which continue to put “substantial pressure”
(Hobbie, 480 U.S. at 141) on Plaintiffs to modify their religious practices and creates
“significant pressure which directly coerces [Plaintiffs] . . . to conform [their]
behavior,” namely preventing them from locating in the kind of serene environment
that their religious practice requires. Midrash, 366 F.3d at 1227.
The district court did not address the issue of whether the denial was the least
restrictive means of achieving a compelling governmental interest, but the
undisputed facts demonstrate that it was not. Sherbert, 374 U.S. at 406 (“‘(o)nly the
gravest abuses, endangering paramount interest, give occasion for permissible
limitation, . . . .’” (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). The City’s
“interest is in preserving the nature of the R-1 district and the properties of the City’s
citizens who live within such district.” Doc. 93-7 at No. 7. This means “maintaining
the residential character,” which is “subjective.” Doc. 93-3 at 40:1-12; Doc. 93-4 at
31
72:10-17. The City’s staff acknowledges that there would be no land use
justification to prohibit the use. See infra, § III(A)(7). The pretextual post hoc
reasons communicated to Plaintiffs do not meet this standard.
“Community character” is an “aesthetic” interest, which is not compelling as
a matter of law. See Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1267
(11th Cir. 2005) (asserted interests in aesthetics not compelling); Congregation
Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 138 F. Supp. 3d 352, 418
(S.D.N.Y. 2015) (same, in RLUIPA case). Further, the stated interest in “preserving
the nature of the R-1 district” is a “generalized interest,” which is not compelling as
a matter of law. See Holt, 135 S. Ct. at 863; Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 432, 438 (2006). Even so, the nearly
seven-acre Property could accommodate the handful of people engaged in Buddhist
meditation without impacting the community. See infra, § III(A)(7).
There is no traffic issue. See infra, § III(A)(7); Fortress Bible Church v.
Feiner, 734 F. Supp. 2d 409, 508 (S.D.N.Y. 2010) (“The complaints of residents
who are not fully informed do not themselves constitute compelling governmental
interests.”), aff'd, 694 F.3d 208 (2d Cir. 2012).
Issues of “access” could easily be resolved by imposing common conditions.
See infra, § III(A)(7); WDS, 504 F.3d at 353 (“The ZBA had the opportunity to
approve the application subject to conditions, but refused to consider doing so.”).
32
Furthermore, the fact that the City has permitted various religious and
nonreligious uses in similar locations demonstrates that the denial does not survive
strict scrutiny. See Lukumi, 508 U.S. at 546-47; Covenant Christian Ministries, Inc.
v. City of Marietta, Georgia, 654 F.3d 1231, 1246 (11th Cir. 2011); Midrash, 366
F.3d at 1235; Rocky Mountain Christian Church v. Bd. of Cty. Comm'rs of Boulder
Cty., 612 F. Supp. 2d 1163, 1175 (D. Colo. 2009), aff'd sub nom. Rocky Mountain
Christian Church v. Bd. of Cty. Comm'rs, 613 F.3d 1229 (10th Cir. 2010).
II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

JUDGMENT TO THE CITY ON PLAINTIFFS’ EQUAL TERMS
CLAIM.
RLUIPA’s Equal Terms provision requires that “No 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.”9 42
U.S.C. § 2000cc(b)(1). Plaintiffs argued that they were treated on less than equal
terms as the Alba Fishing and Hunting Club, which was granted Planning Approval
for a “substantial expansion” of its meeting hall even though it was located in the
same area as the Property, on the Dog River, could impact community character,
was located on substandard roads, and was surrounded by single family residential
9
To prove a violation of RLUIPA’s Equal Terms provision, the Plaintiffs must
produce prima facie evidence that (1) the plaintiff must be a religious institution; (2)
subject to a land use regulation; that (3) treats the religious institution on less than
equal terms; with (4) a nonreligious institution. Primera Iglesia, 450 F.3d at 1307.
33
uses. Doc. 93-3 at 79:7-11, 79:19-80:6; Doc. 97-11 at 3, 5. The City admitted that
the Alba Club’s location was “very similar” to the Property. Doc. 93-3 at 82:5-10.
See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d
1295, 1310 (11th Cir. 2006) (Equal Terms provision could be violated “in the case
of discriminatory application of a facially neutral, generally applicable statute.”).
The district court rejected the Alba Club as a similarly situated comparator because
its location predated the Zoning Ordinance. Doc. 127 at 51-52. It incorrectly
suggested that preventing it from expanding would be a Due Process violation. Id.
at 51.
A comparator need only be comparable in relevant aspects. See Midrash
Sephardi, 366 F.3d at 1231. All of the characteristics of the properties that were the
purported basis for the Planning Commission’s decision were similar. See supra;
Doc. 166-2 at 5162-64; Doc. 93-3 at 79:7-11, 79:19-80:6, 82:5-10; Doc. 97-11 at 3,
5. The “age” of the proposed use was not a relevant aspect of the denial. On that
basis, the Alba Club was similarly situated to the Plaintiffs’ proposed use and its
preferential treatment violated RLUIPA’s Equal Terms provision. Doc. 93-3 at
79:7-11, 79:19-80:6.
34
III. THE COURT FAILED TO APPLY THE CORRECT LEGAL

STANDARDS WHEN IT FOUND THAT THE CITY DID NOT
DISCRIMINATE AGAINST PLAINTIFFS IN VIOLATION OF
RLUIPA’S NONDISCRIMINATION PROVISION AND THE EQUAL
PROTECTION CLAUSE.
The court also found for Defendants on Count II (“RLUIPA Nondiscrimination,”
42 U.S.C. § 2000cc(b)(2)) and Count v. (Equal Protection, 42 U.S.C. § 1983).
Discriminatory intent must be proven for both claims and may be inferred from the
totality of relevant facts, including circumstantial and direct evidence of: (a) the series
of evidence leading up to a land use decision; (b) the context in which the decision was
made; (c) whether the decision or decisionmaking process departed from established
norms, including the City’s actions with respect to other proposed projects; (d)
statements made by the decisionmaking body and community members; (e) reports
issued by the decisionmaking body; (f) whether a discriminatory impact was
foreseeable; and (g) whether less discriminatory avenues were available. See Arlington
Heights, 429 U.S. at 265; Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic
Dist. Comm'n, 768 F.3d 183, 199 (2d Cir. 2014). At trial, Plaintiffs established
substantial evidence for each of these factors, demonstrating that the City selected a
particular course of action at least in significant part because of discriminatory purpose.
Discriminatory intent need only be a substantial factor. Arlington Heights, 429 U.S. at
265; Hunter v. Underwood, 471 U.S. 222, 228 (1985) (same); Stout by Stout v. Jefferson
Cty. Bd. of Educ., 882 F.3d 988, 1006 (11th Cir. 2018).
35
The district court failed to address nearly all of the Arlington Heights factors
and evidence supporting the same. A court’s failure to find facts on the “key issues”
of a case frequently merits reversal. Khan v. Fatima, 680 F.3d 781, 788 (7th Cir.
2012). In Jean v. Nelson, the Court held that failure to make findings as to three
Arlington Heights factors was evidence of error. 711 F.2d at 1490. Here, the district
court’s analysis was limited to the single factor of statements made by city officials
and residents. It then held that “there was no evidence presented that these questions
[concerning the religious issue] served as a motivating factor for the vote of the
Planning Commission” (Doc. 169 at 24), ignoring the evidence that established
exactly that. Further, a vast amount of other relevant circumstantial evidence related
to the Arlington Heights factors demonstrates that Plaintiffs were discriminated
against on the basis of religion. Additionally, the court erred by finding that
comparator churches were not similarly situated.
A. The Court Failed to Apply the Arlington Heights Factors.
The district court did not address most of the evidence supporting Plaintiffs’
discrimination claims under Arlington Heights, which demonstrates how the
religious issue led to the denial.
1. The series of events leading up to a land use decision.
During the April 2015 predevelopment meeting, the City assured Plaintiff it
was appropriate to construct its meditation center in an R-1 zone without any use
36
variances needed.10 Doc. 180 at 8313:17-20, 8317:6-18, 8547:5-9, 8554:25-8555:6,
8558:13-15; Doc. 181 at 8601:24-8602:12. The City’s professional planning staff had
no issue with categorizing the Plaintiffs’ proposed use as religious, which they continue
to believe. Doc. 166-1 at 4664; Doc. 181 at 8612:20-8613:14, 8615:8-10, 8760:15-18,
8764:17-23, 8771:21-8772:1, 8777:5-18; Doc. 182 at 8937:12-17; Doc. 166-6 at 6739.
Based on his communications with hostile local residents (see infra § III(A)(4)),
however, Planning Commission attorney Anderson derailed the process by improperly
(see infra § III(A)(3)) reversing that decision, on which the Planning Commission relied.
Doc. 180 at 8323:10-13, 8565:17-25; Doc. 183 at 9138:6-10, 9289:15-22; Doc. 166-1 at
4685; Doc. 166-2 at 5153; Doc. 166-1 at 5027-5028; Doc. 182 at 9022:19-9023:5, Doc.
166-8 at 7495-96. Neither did the City ever indicate what proof it could receive to make
a definitive determination. Doc. 180 at 8567:1-8. City Planner Hoffman testified that
he disagrees with the City’s position, and the district court noted, “I don’t know why the
City Council and the Planning Attorney had such a hard time with that,” referring to the
religious issue. Doc. 181 at 8780:18-22; Doc. 185 at 9476:23-9477:2.
10
The City’s Zoning Code is clear that, in the City’s R-1 residential district,
churches are an “encouraged” and “compatible” use, while commercial uses are not.
Doc. 166-1 at 4706; Doc. 169 ¶¶ 16, 17; Doc. 183 at 9304:20-9305:6; Doc. 181 at
8775:19-8776:10; Doc. 182 at 8941:16-8942:6. Planning approval is decided by the
City’s Planning Commission, applying the following factors: “being appropriate
with regard to transportation and access, water supply, waste disposal, fire and police
protection, and other public facilities; as not causing undue traffic congestion or
creating a traffic hazard; and as being in harmony with the orderly and appropriate
development of the district in which the use is located.” Doc. 166-1 at 4750.
37
Despite the City normally undertaking to work with applicants on mitigating
issues through conditions (Doc. 180 at 8562:1-2), once the determination was made
that the Center was not religious, the City stopped working with respect to the
modified site plan other than making the recommendation of denial. Id. at 8341:12-
14; Doc. 181 at 8793:2-8794:15; Doc. 166-6 at 6664-65, Doc. #181 at 8790:13-
8792:22. The religious issue therefore was the direct cause of the denial for two
reasons: First, neither Plaintiffs nor City staff could further address the planning
criteria, including possible mitigating conditions. See infra, § III(A)(7). Second,
Anderson directed Staff to “recommend denial” to the Planning Commission on this
basis, which was ultimately the basis for the Planning Commission’s motion denying
the Application at the December 3 hearing. Doc. 166-1 at 4685; Doc. 166-2 at 53-
5154.
The City’s Senior Planner admitted that the religious determination was an
“impediment to moving forward.” Doc. 182 at 8953:16-8954:3. He also admitted
that staff may have recommended approval, were it not for the religious
determination. Id. at 8954:18-25. And that determination led directly to the
Planning Commission’s denial:
Q And the motion to deny was made directly, immediately, after

Mr. Olsen talked about recommendation for denial based on the
commercial-type subdivision; correct?
A The last motion that was made, yes.
38
Doc. 181 at 8830:7-16; see also Doc. 183 at 9152:16-9153:1. The district court
dismissed the significance of the religious issue and determination. Doc. 169 at 23-
24. While the ultimate decision was made by the Planning Commission (subject to
appeal to the City Council), that does not change the fact that the religious
determination was a significant factor resulting in that decision.
2. The context in which the decision was made.
This is not the first time the Association has been targeted for its religious
beliefs. In 2007, at the Center’s first location, neighbors objected on the basis of
religion and their opposition was championed by the area’s City Councilman. Doc.
179 at 8192:15 (“we’re Christian you’re not”); id. at 8192:18-19 (“we’re Christians,
so just don’t agree”); id. at 8194:2-3, 8241:4-5, 8285:21-25; Doc. 181 at 8753:2-8,
8753:20-8754-12; Doc. 166-6 at 6684. Plaintiffs were cited and forced to stop
meditating in the home,11 while the City receives complaints about home Bible
studies but has never acted on them. Doc. 93-25 at 16:20-17:15; Doc. 93-3 at 16:9-
17:17; Doc. 166-9 at 7931; Doc. 179 at 8192:2-7, 8284:5-25.
The City recommended denial of the Association’s application for religious
use there because of “access” concerns on either a major or minor street, which are
11
There, the City treated the Association’s use as religious in order to issue
violations. Doc. 181 at 8748:25-8749:23, 8751:3-6, 8752:6-22; Doc. 166-6 at 6686-
88.
39
the only two types of streets in Mobile. Doc. 181 at 8754:22-8755:24; Doc. 166-1
at 4670.12 It is telling that the City recommended denial on a busy street in that
application, while purportedly denying the current Application based on the Property
being located on a street with barely any traffic.
3. Whether the decisionmaking process departed from established

norms, including the City’s actions with respect to other
proposed projects.
The decisionmaking process with respect to Plaintiffs’ Application departed
from established norms both procedurally and substantively.
The City works with churches and other applicants to mitigate the negative
impacts of their use but did not do so in this case because of the religious
determination. Doc. 181 at 8652:3-9. Plaintiffs’ experienced realtor testified that
he has never had an application for a client for planning approval denied. Doc. 180
at 8561:20-25.
No Church application for planning approval has ever been denied before.
Doc. 181 at 8651:10-13; Doc. 182 at 8856:17-20, 8947:12-18, 9039:13-9041:21;
Doc. 183 at 9309:5-20; Doc. 166-9 at 7933:10-7934:2.
There was substantial testimony about other similarly situated churches that
were granted planning approval where they presented the same purported issues as
12
The City, apparently unconcerned with much more intensive uses at the
same location, has since approved a Publix across the street. Doc. 179 at 8253:23-
8254:9, 8287:23-8288:2; Doc. 181 at 8757:8-25.
40
the Association. Doc. 182 at 9048:20-9068:23, 9112:8-9114:20, Doc. 166-6 at
6699-6700, 6711, 6740-44; see Doc. 166-5 at 6082-6090. Staff worked with each
of these applicants to mitigate any land use impacts. Doc. 182 at 9050:15-9052:1,
9058:5-9062:25, 9063:1-9064:7, 9065:23-9068:23; Doc. 166-6 at 6701-10, 6712-
13; Doc. 166-7 at 6833-34; Doc. 166-5 at 6164-6171, 6189-6206; Doc. 166-8 at
7512, 7663-7668.
No other church applicant has ever had to prove that it was sufficiently
“religious.” Doc. 180 at 8565:15-25, 8566:5-14; Doc. 181 at 8627:13-18, 8781:11-
19, 8786:6-1, Doc. 183 at 9134:4-8, 9136:24-9137:3.
After Anderson made his determination, the City ignored the appeals process
in the City Code that only the Board of Zoning Adjustment, on appeal of an
aggrieved party, could reverse the determination that the use was religious. Doc.
181 at 8762:23-8763:4, 8766:24-8769:10, 8790:8-17; Doc. 183 at 9134:17-23.
The Planning Commission members’ statements—which focused entirely on
the Association’s religious status—never included the purported “reasons” for its
denial on the record, nor did they even see or review them. Doc. 166-6 at 6676-80;
Doc. 181 at 8833:2-8, 8834:20-8835:5; Doc. 182 at 9027:11-14; Doc. 183 at 9308:1-
20; Doc. 184 at 9331:16-9332:6, 9334:15-25. In such cases, staff will use the
reasons for denial from the staff report in its letter of decision or note that the reasons
were based on points discussed by the Planning Commission. Doc. 182 at 9026:5-
41
24, 9030:17-9032:8. But neither of those happened here. In this case, Anderson
ordered Olsen to use new reasons based on points made by the opposition. Doc.
166-6 at 6676-80; Doc. 182 at 9027:11-19, 9028:3-9029:5, 9032:24-25. The City
Council did not state its reasons for denying the appeal in its letter of decision but
agreed that the denial was for the same reasons as the Planning Commission. Doc.
166-1 at 5004; Doc. 166-9 at 7935:15-21.
The stated reasons in the “Draft” Minutes of the December 3 hearing, which
have never been approved, do not accurately reflect the meeting. Doc. 166-4 at 5827-
5836; Doc. 182 at 8852:20-8853:7, 8853:21-8855:5, 8855:11-19.
Anderson later falsely told the City Council that certain IRS information was
“[t]he only” information presented by Plaintiffs as to their religious status. Doc.
166-2 at 5247. Olsen falsely told the City Council that the recommendation for
denial was “largely based on the insufficient access” to the Property, even though it
was solely based on the religious issue. Doc. 166-2 at 5153, 5253; Doc. 181 at
8685:12-15; Doc. 182 at 8943:16-22.
4. Statements Made by the Decisionmaking Body and Community

Members.
Numerous contemporaneous statements made by the decisionmaking body
and community members demonstrate hostility to Plaintiffs’ beliefs and practices.
Courts have focused on government decisionmakers’ responsiveness to hostile local
residents to determine discriminatory intent. See, e.g., LeBlanc-Sternberg v.
42
Fletcher, 67 F.3d 412, 425 (2d Cir. 1995); Marks v. City of Chesapeake, Va., 883
F.2d 308, 312 (4th Cir. 1989); 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 v. Village of Pomona, 915 F. Supp. 2d 574, 616-17 (S.D.N.Y. 2013).
Similar to the Plaintiffs’ experience in 2007, local sentiment was directed at
their religious beliefs and practices. At a November 30, 2015 community meeting
concerning the proposed use, “a man was crying, saying that he was Christian, this is
unacceptable.” Doc. 179 at 8219:25-8220:2. People were “screaming and yelling,”
and it was “hostile and unpleasant.” Doc. 180 at 8455:18-19, 8456:2, 8570:2-3. “One
person stood up and said: ‘Oh, so you’re bringing a big Buddhist congregation into
the area, are you?’” Id. at 8221:10-13. Neighbors made other statements such as “We
don’t want Buddhism,” id. at 8568:18, “This is not a church, this is a Buddhist temple,
and we don’t need that. Why are you doing this in our neighborhood?,” id. at 8568:18-
20, and “We didn’t need Buddhism. ‘We don’t need -- this is not a Buddhist
neighborhood,’ or something to that effect, . . . .” Id. at 8570:10-12.
The religious determination occurred against a backdrop of citizen opposition
focused predominantly on the religious issue. Doc. 180 at 8342:9-11; id. at 8483:22-
8484:4, 8484:16-23; Doc. 181 at 8781:25-8782:7 (complaints about the religious
issue came by email); id. at 8772:18-20, 8781:1-3, 8782:8-12, 8797:22-24, 8814:20-
23, 8821:20-8822:7, 8824:1-9, 8831:7-9; Doc. 184 at 9374:6-9379:21; Doc. 166-8
43
at 7456, 7495; Doc. 182 at 8971:14-8974-2. Anderson parroted this same hostility
to the Planning Commission. Doc. 181 at 8799:23-8800:5.
The City was responsive13 to the residents’ and refused to acknowledge that a
Buddhist meditation center is “religious.” Doc. 166-2 at 5215-6 (“This is not a
religious facility. The application was for Meditation Center of Alabama or
whatever. This is not the Baptist church or the Episcopal church.”).14 It continues
to dispute that the Association is a religious organization even after being provided
with documents regarding the religious nature of the organization. Doc. 142 at 3875
¶ 1; Doc. 180 at 8323:21-8332:16; 8353:5-8354:4; Doc. 166-7 at 6909-6968. It
continues to dispute that “Buddhist meditation activity” constitutes “public worship”
within the meaning of the Mobile Zoning Code. Doc. 142 at 3875 ¶ 3. As a result,
no meditation center could ever meet the definition of a “church or religious facility”
under the Mobile Zoning Code. Doc. 166-1 at 4690.
The hostile statements continued at the December 3 hearing. Doc. 166-2 at
5366, 5371, 5376, 5379; Doc. 182 at 8968:9-8969:17; Doc. 184 at 9378:18-9379:15.
13
Esham communicated with Anderson and Councilman Small during this
period. Doc. 182 at 8963:18-8964:15; Doc. 183 at 9144:10-17; Doc. 182 at 9008:6-
8.
14
The City records its Planning Commission and City Council meetings.
These recordings and their transcripts were admitted into evidence. Doc. 166-1 at
4683, 4684, 5026; Doc. 166-2 at 5165-5314, 5314-5335, 5336-5391.
44
At trial, Chairman Watkins noted that the opposition’s statements motivated his
comments at the hearing. Doc. 183 at 9301:6-9302:8.
In response to these statements, none of the Planning Commission members
had any questions or statements about land use issues; they all related to the religious
issue. Doc. 181 at 8818:11-8823:22, 8830:17-8831:6, 8831:10-12. This led to the
Planning Commissioners questioning the religious nature of the Association (for
example, “Are you contending this is a religious organization?”) and being subject
to Anderson’s statements that it was not. Doc. 166-2 at 5348:10-13, 5350:7-15;
5351:5-7; 5359-62. The same was true at the City Council hearing. Doc. 166-2 at
5208-5212, 5214-5217, 5247-5248.
Hostile objectors continued their efforts prior to the City Council appeal.
Doc. 166-6 at 6747, Doc. 166-8 at 7411-13, 7450, 7453-55, 7458, 7460-7477,
7485, 7498-7501. Joel Daves, the Planning Commissioner and City Councilman
who moved to deny Plaintiffs’ Application, discussed Plaintiffs’ tax status at the
City Council hearing. Doc. 166-2 at 5247. At the aforementioned neighborhood
meeting, Councilman Small stated: “Okay. I’ve heard enough. I’ve heard - -
you know, my responsibility is to the people,” Doc. 179 at 8222:23-8223:1, and
later, “I’m with whatever the neighborhood wants. You know, I’m on that side,
and let’s just bring it to an end.” Doc. 180 at 8569:1-2. There can be no question
that City decisionmakers were directly responsive to local residents’ complaints
45
about the Buddhist nature of the facility, and their belief that it wasn’t
“religious.”
5. Reports issued by the decisionmaking body.
Planning staff are the staff of the Planning Commission and, thus, their reports
are reports issued by the decisionmaking body. Doc. 183 at 9289:23-90:10. The
October 15 Staff Report analyzed the project as a religious use for planning
approval, but the December 3 Staff Report recommended denial based on the
religious determination, which became the primary focus of the hearing. Doc. 166-
2 at 5128, 5154; Doc. 181 at 8642:6-14. The only assessment as to community
“character” in either report was Anderson’s decision that a variance would be
required. Doc. 166-2 at 5128, 5154. Neither report discussed traffic or access. Doc.
166-2 at 5128, 5154; Doc. 183 at 9294:16-18; Doc. 181 at 8709:14-22.
6. Whether a discriminatory impact was foreseeable.
The City knew that a denial would prevent the Buddhist meditation center
from locating at the Property. It also knew that the Planning Commission could not
review substantive comments and conditions from staff if such report was not
prepared. See supra.
7. Whether less discriminatory avenues were available.
The City has found a way to make every application for a religious facility
work, until now. The Planning Commission and City Council place conditions on
46
approvals to address any land use concerns. Doc. 180 at 8561:20-8562:2; Doc. 182
at 8861:8-19, 9033:8-9035:2; Doc. 183 at 9290:24-9291:6.15 City Planner Hoffman
testified that mitigation factors could have been implemented to permit the approval
of Plaintiffs’ Application. Doc. 182 at 8952:22-8953:11.
Plaintiffs could have addressed all items set forth at the predevelopment
meetings and in the October 15 Staff Report. Doc. 180 at 8562:14-25; Doc. 181 at
8635:7-20, 8708:19-8709:22, 8711:25-8712:2, 8761:22-8762:8, 8789:6-20; Doc.
182 at 9037:25-9039:12. The City’s traffic engineer admitted that she had “no traffic
safety concerns” and no traffic impact study or other analysis was performed.16 Doc.
181 at 8714:4-8715:2, 8738:21-8740:16, 8743:16-18; Doc. 182 at 8864:13-8865:21.
When the City sent a zoning inspector to monitor traffic at a retreat on the Property,
she noted that she “did not observe any vehicles . . . .” Doc. 182 at 9042:19-9044:9;
Doc. 166-6 at 6626-29. The City has approved other religious facilities on
substandard roads. Doc. 182 at 8868:14-8870:24.
The character of the community can be preserved. The Property is large and
heavily forested. Doc. 180 at 8572:15 (“You could lose 20 people on that piece of
15
Plaintiffs were willing to work with the City to take all necessary steps and
accept conditions on their proposed use. Doc. 180 at 8332:21-8333:16, 8340:21-
8341:11; Doc. 181 at 8625:2-10, 8634:13-20, Doc. 182 at 8870:25-8871:3, 9034:18-
21.
16
Local resident Kelly has no issue with his own church holding publicized
events at his property further along Eloong Drive. Doc. 184 at 9383:23-9385:7.
47
property”). The area near the Property includes churches, marinas and a family
shelter. Doc. 179 at 8224:2-8227:3; Doc. 166-10 at 7952; Doc. 182 at 8859:2-
8860:1, 8934:14-8935:20, 9035:15-9036:15.
Staff agreed that there was no land use reason that planning approval could
not be granted. Doc. 181 at 8624:20-23, 8634:5-8; Doc. 182 at 8865:22-8868:13.
See also Doc. 181 at 8643:18-21 (“I wouldn’t see anything else that would be cause
for denial potentially.”). The only issue left (other than “access,” which could be
addressed through conditions) was the “religious determination.” Doc. 181 at
8789:21-22; Doc. 182 at 8857:16-8858:16.
The lower court thus failed to apply the relevant Arlington Heights analysis,
which takes into account a broad array of circumstantial and direct evidence that
may demonstrate discriminatory intent. Jean v. Nelson, 711 F.2d at 1486. While it
stated, “the circumstantial evidence does not support a finding of discriminatory
intent based on the Arlington Heights factors” (Doc. 169 at 24), it did not actually
apply these factors.
B. In a Case of First Impression in this Circuit, the District Court Erred by

Requiring a Showing of a Comparator in a RLUIPA Nondiscrimination
Case and in its Analysis of the Proffered Comparators.
The Eleventh Circuit has never held that a comparator is required to establish
a selective enforcement claim made pursuant to 42 U.S.C. § 2000cc(b)(2). The
Court erred in its reliance on Church of Scientology of Georgia, Inc., 843 F. Supp.
48
2d at 1360-62, to find that a comparator is required. Doc. 169 at 19-20. That court
noted: “[t]he parties treat RLUIPA’s nondiscrimination provision as a subset of the
equal terms provision and assert that in order to make out a case of religious
discrimination, Plaintiff must show that it was treated differently from a similarly
situated religious organization” and required a “similarly situated religious
comparator.” Scientology, 843 F. Supp. 2d at 1360. The Nondiscrimination
provision is not a subset of the Equal Terms provision (which by its terms does
require a comparator, see supra). See 42 U.S.C. § 2000cc(b)(1), (2).
In Chabad Lubavitch, the Second Circuit rejected the requirement of a
comparator in a RLUIPA Nondiscrimination selective enforcement claim. 768 F.3d
at 199; see also Adhi Parasakthi Charitable, Med., Educ. Soc’y of N. Am. v.
Township of W. Pikeland, 721 F. Supp. 2d 361, 386 (E.D. Pa. 2010) (finding that the
proffered comparators were not similarly situated but that claim could proceed);
Islamic Soc'y of Basking Ridge v. Township of Bernards, 226 F. Supp. 3d 320, 344
(D.N.J. 2016) (“Where a government expressly discriminates on the basis of
religion, however, the Nondiscrimination Provision does not require a showing of
similarly situated comparators.”). Plaintiffs need not show a comparator; only a
discriminatory purpose. Arlington Heights, 429 U.S. at 265; Scientology, 843 F.
Supp. 2d at 1371.
49
The Court then failed to determine whether a comparator is similarly situated
in all relevant respects. See Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1314
(11th Cir. 2006). The relevant aspects here were the location on a substandard road,
in a residential community surrounded by single family homes. The district court,
however, expanded that to various other characteristics that had nothing to do with
the purported “reasons” for denial, e.g., new construction on a property including a
single-family house and the “degree of community opposition.” Doc. 169 at 21.
Uses must only be identical in relevant aspects. Xcaliber Int'l, Ltd. LLC v. Georgia
ex rel. Carr, 253 F. Supp. 3d 1220, 1229 (N.D. Ga. 2017) (“comparators need not
be identical twins”).
The proffered comparators had the same relevant characteristics and could
impact traffic and community character in the same ways regardless of whether they
were new or replacement construction, or expansions of uses. Doc. 182 at 8862:8-
8863:4; 9040:13-9041:21.
By focusing on the age of a comparator and/or its existence before the
enactment of the zoning ordinance, the court favored long-standing and traditional
religious groups over new or minority religious groups, which is precisely the type
of disparate treatment RLUIPA was enacted to eradicate. See 146 CONG. REC. at
S7774 (“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
50
highly individualized and discretionary processes of land use regulation.” (emphasis
added)); C.L.U.B., 342 F.3d at 770 (Posner, J., dissenting) (differential treatment
between grandfathered and new uses would discriminate against “new, small, or
impecunious churches”). The Court erred in its formulation of the relevant criteria
and its failure to adequately analyze the proffered comparators. See Doc. 169 ¶¶ 60-
64.
IV. THE DISTRICT COURT ERRED IN FINDING AGAINST

PLAINTIFFS ON THEIR NEGLIGENT MISREPRESENTATION
CLAIM.
To establish a claim for negligent misrepresentation under Alabama law,
Plaintiffs must demonstrate “(1) a misrepresentation of material fact, 2) made
willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was
reasonably relied on by the plaintiff under the circumstances, and 4) which caused
damage as a proximate consequence.” Bryant Bank v. Talmage Kirkland & Co., 155
So. 3d 231, 238 (Ala. 2014).
Regarding the first element, the district court found that “[t]here is no
evidence that Mr. Hoffman allegedly told Mrs. Nimityongskul . . . at the April 2015
predevelopment meeting her application would be treated as a church or religious
facility[.]” Doc. 169 at 26. This is contradicted by Hoffman’s testimony at trial.
Doc. 182 at 8937:12-14; see also Doc. 169 ¶ 18; Doc. 169 at 26; Doc. 169 ¶ 10.
51
Regarding the second element, the district court found that “[t]here is no
evidence Mr. Hoffman’s intent was to deceive Mrs. Nimityongskul[.]” Doc. 169 at
26. Under Alabama law, such intent is not required, and lack of knowledge and
mistake also qualify as mens rea for this element. Bryant Bank, 155 So. 3d at 238;
ALA. CODE § 6-5-101. Hoffman’s statement that Plaintiffs’ Application would be
treated as a church at the very least constitutes a mistake or reflects a lack of
knowledge, because the City ultimately treated Plaintiffs’ Application as that of a
commercial business.
Regarding the third element, the district court found that Plaintiff Sivaporn
Nimityongskul knew that the Planning Commission would review the Application.
Doc. 169 at 26. But this establishes the existence of reliance, not the lack of it; she
expected that it would be treated as a religious facility. Doc. 180 at 8312:8-8314:20;
8317:19-8318:14. This reliance was reasonable, given the representations made to
her by City officials.
Finally, the district court said the last element was not met because the
Application was evaluated under planning approval criteria, and because Plaintiffs
closed on the property prior to submitting the Association’s Application. Id.
However, the City’s “use” of planning approval criteria was a pretext as described
above; it denied Plaintiffs’ Application because “[t]his is not the Baptist Church or
the Episcopal church.” Doc. 183 at 9173:6-10. And Plaintiffs’ prior purchase of the
52
property does not change the fact that, relying on the City’s representations,
Plaintiffs spent considerable time and resources pursuing planning approval.
V. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFFS’

CLAIM UNDER ARFA.
Under the Alabama Religious Freedom Act (“ARFA”), “[g]overnment may
burden a person's freedom of religion only if it demonstrates that application of the
burden to the person: (1) Is in furtherance of a compelling governmental interest;
and (2) Is the least restrictive means of furthering that compelling governmental
interest.” ALA. CONST. art. I, § 3.01(II)(3) (emphasis added). Unlike RLUIPA, there
is no requirement that such burden be “substantial.”
The district court failed to give ARFA’s text its natural meaning to apply to
any burdens on religious exercise, and incorrectly inserted the additional modifier
“substantial.” AFRA, by its explicit terms, applies strict scrutiny review to any
government action that “burden[s]” religious exercise, substantial or not. Under
Alabama law, a court “cannot supply words purposely omitted, and should supply
an omission only when . . . the omitted word [is] plainly indicated by the context,”
State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 232, 66 So. 2d 726,
729 (1953), which is not the case here. See also Merritt v. Dillard Paper Co., 120
F.3d 1181, 1187 (11th Cir. 1997) (“Courts have no authority to alter statutory
language. We cannot add to the terms of Title VII’s anti-retaliation provision what
Congress left out . . . .”); United States v. Fulford, 662 F.3d 1174, 1178 (11th Cir.
53
2011) (“it is not our function to modify, amend, or improve statutes or guidelines”);
Nguyen v. United States, 556 F.3d 1244, 1256 (11th Cir. 2009) (“We are not
authorized to rewrite, revise, modify, or amend statutory language in the guise of
interpreting it”).
Here, the omission of “substantial” from the Alabama statute—which was
enacted prior to RLUIPA—should be deemed intentional, since “[i]n enacting new
legislation, the Legislature is presumed to know the existing law.” Thompson v.
Colbert Cty. Tourism & Convention Bureau, 782 So. 2d 313, 317 (Ala. Civ. App.
2000); see also Doggrell v. City of Anniston, Civ. No. 1:16-0239, 2017 WL 4340449,
at *21 (N.D. Ala. Sept. 29, 2017) (finding AFRA claim meritless when there was no
burden on freedom of religion “substantially or otherwise” (emphasis added)).
The state legislature was well aware of the “substantial burden” language in
the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq., (“RFRA”)
adopted in 1993, held unconstitutional as applied to the states in 1997. City of
Boerne v. Flores, 521 U.S. 507 (1997). The first five legislative findings in ARFA
track the first five legislative findings in RFRA, with the notable omission of the
term “substantially.” Where RFRA’s third finding states: “governments should not
substantially burden religious exercise without compelling justification;” ARFA’s
states: “Governments should not burden religious exercise without compelling
justification.” 42 U.S.C. § 2000bb(a)(3); ALA. CONST. Art. I, § 3.01(II)(3).
54
Similarly, the legislature left out the word “substantially” in the “Purpose” section,
which is very similar to RFRA’s provision. Compare 42 U.S.C. § 2000bb(b)(1), (2),
with ALA. CONST. Art. I, § 3.01(III). Alabama chose to be more protective of
religious freedom, and AFRA should not be rewritten by the courts to negate this
protection.
Neither is the statute ambiguous. It states: “Government shall not burden a
person’s freedom of religion even if the burden results from a rule of general
applicability, except as provided in subsection (b).” ALA. CONST. Art. I,
§ 3.01(V)(a). It repeats the term “burden” again in section 3.01(V)(b). Again, these
provisions mirror the text of RFRA, without the modifying term “substantially.” See
42 U.S.C. § 2000bb-1(a),(b). Finally, its rule of construction also states that it “shall
be liberally construed to effectuate its remedial and deterrent purposes.” Id.
§ 3.01(VII). See IMED Corp. v. System Eng'g Assocs. Corp., 602 So. 2d 344, 346
(Ala. 1992) (courts must interpret plain language “to mean exactly what it says”).
For all of the reasons described above, Argument § I, it cannot be reasonably
disputed that the denial has burdened Plaintiffs’ religious exercise. Further, as
discussed above, the denial is not the least restrictive means of achieving a
compelling governmental interest.
55
CONCLUSION
The City’s treatment and ultimate denial of Plaintiffs’ Application
substantially burdened their religious exercise and discriminated against them on the
basis of religion in violation of RLUIPA, the Alabama and U.S. Constitutions and
Alabama law. The district court misapplied the law and failed to consider crucial
evidence in reaching its Opinion and Judgment in this case. Accordingly, its
decisions should be reversed and vacated, and Judgment entered for Plaintiffs-
Appellants as to Counts I through VII of the Complaint.
Respectfully submitted this 16th day of October, 2019.
By: /s/ Roman P. Storzer

Roman P. Storzer
1025 Connecticut Ave., N.W., Suite 1000
Washington, D.C. 20036
Tel: 202.857.9766
Fax: 202.315.3996
storzer@storzerlaw.com
56
CERTIFICATE OF COMPLIANCE
1. This document complies with type-volume limits because, excluding the
parts of the document exempted by Fed. R. App. P. 32(f) (cover page,
disclosure statement, table of contents, table of citations, statement regarding
oral argument, signature block, certificates of counsel, addendum,
attachments):
this document contains 12,963 words.
2. This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32 (a)(6)
because:
this document has been prepared in a proportional spaced typeface

using Microsoft Word in 14 point Times New Roman.
Dated: October 16, 2019 By: /s/ Roman P. Storzer

Roman P. Storzer

CERTIFICATE OF FILING AND SERVICE
I hereby certify that, on this 16th day of October 2019, I caused the
foregoing to be filed with the Clerk of the Court, via the CM/ECF System, which
will send notice of such filing to all registered users.
I further certify that the required paper copies have been dispatched to the
Clerk of the Court, via United Parcel Service, for delivery within three business
days, and one copy was served upon lead counsel for each separately represented
party, addressed as follows:
Michael B. Billingsley
U.S. Attorney’s Office
1801 4th Avenue North
Birmingham, AL 35203
The necessary filing and service were performed in accordance with the
instructions given to me by counsel in this case.
/s/Denise Dulong
Denise Dulong
GibsonMoore Appellate Services, LLC
206 East Cary Street
P.O. Box 1460 (23218)
Richmond, VA 23219
(804) 249-7770 – Telephone
(804) 249-7771 – Facsimile
denise@gibsonmoore.net

Tmca Filed Brief To Appellate Court in Atlanta Oct 2019

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RECORD

Case: 19-12418 NO.

United States Court Of Appeals

CITY OF MOBILE, ALABAMA,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

Counsel for Appellants

IN THE UNITED STATES COURT OF APPEALS

THAI MEDITATION ASSOCIATION OF

Appellants, Appeal No. 19-12418-B

CITY OF MOBILE, ALABAMA,

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

Anderson, Douglas L. -- Counsel for Defendant/Appellee

Burr & Forman, LLP -- Counsel for Defendant/Appellee

City of Mobile, Alabama -- Defendant/Appellee

Johnson, Taylor Barr -- Counsel for Defendant/Appellee

Lawler, John L. -- Counsel for Plaintiffs/Appellants

District of Alabama -- Trial Judge

Nimityongskul, Serena -- Plaintiff/Appellant

Nimityongskul, Sivaporn -- Plaintiff/Appellant

Nimityongskul, Prasit -- Plaintiff/Appellant

Nimityongskul, Varin -- Plaintiff/Appellant

Stepanovich, John G. -- Counsel for Plaintiffs/Appellants

Storzer & Associates, P.C. -- Counsel for Plaintiffs/Appellants

Storzer, Blair Lazarus -- Counsel for Plaintiffs/Appellants

Storzer, Roman P. -- Counsel for Plaintiffs/Appellants

Strasavich, Michael David -- Counsel for Defendant/Appellee

Thai Mediation Association of Alabama, Inc. -- Plaintiff/Appellant

interest in this proceeding.

B. Pursuant to Federal Rule of Appellate Procedure 26.1(a), Plaintiff-Appellant Thai

/s/ Roman Paul Storzer

Attorneys for Plaintiffs-Appellants

Court’s electronic filing system on July 9, 2019.

/s/ Roman Paul Storzer

CERTIFICATE OF INTERESTED PERSONS AND

TABLE OF CONTENTS ........................................................................................... v

TABLE OF AUTHORITIES ................................................................................. viii

STATEMENT REGARDING ORAL ARGUMENT ............................................xvi

STATEMENT OF THE ISSUES............................................................................... 1

STATEMENT OF THE CASE .................................................................................. 2

Procedural History ........................................................................................... 3

Statement of Facts ................................................................................................. 4

Standard of Review ............................................................................................. 12

SUMMARY OF THE ARGUMENT ...................................................................... 14

I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

A. “Complete Prevention” Is Not a Viable Standard in the

B. The District Court’s Holding Was Not Faithful to

1. “Substantial” Is to Be Given Its Ordinary or Natural

2. RLUIPA’s Language Contemplates Its Application

3. The District Court’s Requirement That Plaintiffs Be

4. The Substantial Burden Provision Applies to a

C. The District Court’s Holding Is Contrary to Two Rules of

1. The District Court’s Holding Renders RLUIPA’s

2. RLUIPA’s Terms Should Be Interpreted Broadly ......... 28

D. The Implementation of Land Use Regulation Need Not Be

E. The Uncontested Facts Demonstrate that Summary

II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY

III. THE COURT FAILED TO APPLY THE CORRECT LEGAL

A. The Court Failed to Apply the Arlington Heights Factors ....... 36

1. The series of events leading up to a land use

2. The context in which the decision was made ................. 39

3. Whether the decisionmaking process departed from

4. Statements made by the decisionmaking body and

5. Reports issued by the decisionmaking body .................. 46