A145573

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT
DIVISION ONE
______________________________________________________
COASTAL HILLS RURAL PRESERVATION,
Petitioner/Appellant
v.
COUNTY OF SONOMA
Respondent
______________________________________________________
JACK PETRANKER, an individual, et al.,
Real Parties in Interest and Respondents
______________________________________________________
Appeal from Sonoma County Superior Court
The Honorable Elliot Lee Daum, presiding
(Case No. SCV 255694)
______________________________________________________
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF AND [PROPOSED] BRIEF OF AMERICAN
ATHEISTS IN SUPPORT OF PETITIONER COASTAL
HILLS RURAL DEVELOPMENT
______________________________________________________
Amanda Knief
American Atheists Legal Center
1220 L St. NW Suite 100-313
Washington, D.C. 20005
Tel. 202-241-4905
Email: aknief@atheists.org
Attorney for Amicus Curiae

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to California Rule of Court, Rule 8.208, amicus curiae
American Atheists, to the best of its knowledge, is unaware of any
entities or persons who have a financial interest in the outcome of
this proceeding that would be relevant to the zoning of the Tibetan
Nyingma Meditation Center.
Pursuant to California Rule of Court, Rule 8.208, amicus curiae
American Atheists asked the Appellants counsel for court filings,
including Appellants briefs, and to review the amicus curiae brief.
Dated: December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF
American Atheists Legal Center
Attorney for Amicus Curiae

APPLICATION
Pursuant to Rule 8.200(c) of the California Rules of Court,
American Atheists respectfully applies for permission from the
presiding justice to file the Amicus Curiae Brief contained herein.
American Atheists is the premier secular organization advocating
for the absolute separation of religion and government in the
United States. Founded in 1963, American Atheists is a nonprofit,
nonpolitical, educational organization which offers a secular
perspective on the role of religious freedom in the United States as
envisioned by this countrys Founders. American Atheists has
hundreds of members in California as well as 17 affiliate
organizations in the state.
The zoning adjustment at issue in this case implicates
American Atheists core interest in preserving and strengthening
the constitutional separation between religion and government.
American Atheists is therefore deeply invested in ensuring
appropriate judicial scrutiny of religiously motivated zoning
decisions in accordance with the First Amendment and federal law.
Dated: December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF
American Atheists Legal Center
Attorney for Amicus Curiae

A145573
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
______________________________________________________
COASTAL HILLS RURAL PRESERVATION,
Petitioner/Appellant
v.
COUNTY OF SONOMA
Respondent
______________________________________________________
JACK PETRANKER, an individual, et al.,
Real Parties in Interest and Respondents
______________________________________________________
Appeal from Sonoma County Superior Court
The Honorable Elliot Lee Daum, presiding
(Case No. SCV 255694)
______________________________________________________
APPLICATION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF AND [PROPOSED] BRIEF OF AMERICAN
ATHEISTS IN SUPPORT OF PETITIONER COASTAL
HILLS RURAL DEVELOPMENT
______________________________________________________
Amanda Knief
American Atheists Legal Center
1220 L St. NW Suite 100-313
Washington, D.C. 20005
Tel. 202-241-4905
Email: aknief@atheists.org
Attorney for Amicus Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES

SUMMARY OF ARGUMENT

ARGUMENT

I.

II.

RLUIPA SHOULD BE CONSTRUED

NARROWLY TO AVOID CHILLING
NONDISCRIMINATORY GOVERNMENT
ACTIVITY 9
A.

SONOMA COUNTY GRANTED

ZONING EXEMPTION TO TNMC
BECAUSE OF RLUIPAS
CHILLING EFFECT 9

B.

THE SUBSTANTIAL BURDEN

REQUIREMENT SHOULD BE
READ NARROWLY TO AVOID
THE DANGER OF RLUIPA BEING
EXPLOITED AS A LOOPHOLE
TO EVADE REASONABLE
ZONING LAWS..
12

BROADLY INTERPRETED, RLUIPA

VIOLATES THE ESTABLISHMENT CLAUSE
OF THE FIRST AMENDMENT.. 18

CONCLUSION

21

TABLE OF AUTHORITIES
CASES
McCreary County v. ACLU
545 U.S. 844 (2005)

PAGES
16, 19

Santa Fe Independent School District v. Doe

530 U.S. 290 (2000)

19-20

Lee v. Weisman
505 U.S. 577 (1992)

20

Employment Division v. Smith

494 U.S. 872 (1990)

9, 18

Edwards v. Aguillard
482 U.S. 578 (1987)

19

Wallace v. Jaffree
472 U.S. 38 (1985)..

19-20

Larkin v. Grendels Den

459 U.S. 116 (1982)

20-21

Stone v. Graham
449 U.S. 39 (1980)..

19

Lemon v. Kurtzman
403 U.S. 602 (1971)

8, 14, 19

Walz v. Tax Commission of New York

397 U.S. 664 (1970)

20

School District of Abington Township v.

Schempp
374 U.S. 203, 223 (1963)

19

International Church of the Foursquare Gospel

v. City of San Leandro
673 F.3d 1059 (9th Cir. 2011).............................. 8, 12-14
San Jose Christian College v. City of Morgan
Hill
360 F.3d 1024 (9th Cir. 2004)

8, 14-15

Lighthouse Institute for Evangelism, Inc.

v. City of Long Branch.
510 F.3d 253 (3rd Cir. 2007).

16-17

Lighthouse Institute for Evangelism, Inc.

v. City of Long Branch
100 Fed Appx. 70 (3rd Cir. 2004)..

8-9, 16-17

Saints Constantine and Helen Greek Orthodox

Church, Inc. v. City of New Berlin
396 F.3d 895 (7th Cir. 2005)..

16

Civil Liberties for Urban Believers v. City of

Chicago
342 F.3d 752 (7th Cir. 2003)..

8, 14-16

Midrash Sephardi, Inc. v. Town of Surfside

366 F.3d 1214, (11th Cir. 2004).

8, 17

Guru Nanak Sikh Society v. County of Sutter

326 F. Supp. 2d 1140 (E.D. Cal. 2003)..

8, 11-12

Cottonwood Christian Center v. Cypress

Redevelopment Agency
218 F. Supp. 2d 1203 (C.D. Cal. 2002)..

12

Westchester Day School v. Village of

Mamaroneck
280 F. Supp. 2d 230 (S.D.N.Y. 2003)

12

OTHER AUTHORITIES
42 U.S.C.S. 2000bb

PAGES
14, 20

42 U.S.C.S. 2000cc

SONOMA CNTY., CAL., CODE 26C-12 (2015)...

10

Daniel P. Lennington, Thou Shalt Not Zone:

The Overbroad Applications and Troubling
Implications of RLUIPAs Land Use
Provisions, 29 Seattle U. L. Rev. 805 (2006).....

12

Appellants Opening Brief

10-11

SUMMARY OF ARGUMENT
This Court should not uphold the zoning adjustments
requested by Jack Petranker and the Tibetan Nyingma Meditation
Center (TNMC) because the zoning adjustment was made in
deference to an unsustainably broad reading of the Religious Land
Use and Institutionalized Persons Act (RLUIPA) substantial
burden requirement advanced by the Ninth Circuit Court of
Appeals in International Church of the Foursquare Gospel v. City
of San Leandro, 673 F.3d 1059, 1069-70 (9th Cir. 2011), and the
Eastern District of California in Guru Nanak Sikh Society v.
County of Sutter, 326 F. Supp. 2d 1140 (E.D. Cal. 2003). Evidence
shows that Sonoma County permitted TNMC to enjoy zoning
adjustments to allow a commercial printing press operation in a
high-fire zone and rural zoned area based entirely upon the
religious nature of the organization with no real assessment of the
impact on the surrounding area. Local governments are fearful of
challenging free exercise claims under RLUIPA because of broad
readings from courts which state that any delay, uncertainty, or
expense caused by a zoning restriction constitutes a substantial
burden on religious exercise. This court must read RLUIPAs
substantial burden requirement narrowly to avoid the danger of
writing the requirement out of the law altogether, thus making
even incidental burdens on religious exercise subject to a leastrestrictive means test. A number of cases support a narrow reading
of RLUIPA and highlight the danger associated with the broad
interpretation. San Jose Christian College v. City of Morgan Hill,
360 F.3d 1024 (9th Cir. 2004); Lighthouse Institute for
Evangelism, Inc. v. City of Long Branch, 100 Fed Appx. 70 (3rd
Cir. 2004); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1221 (11th Cir. 2004); Civil Liberties for Urban Believers v.
City of Chicago. 342 F.3d 752 (7th Cir. 2003).
Moreover, the broad interpretation of RLUIPAs
substantial burden requirement likely fails the Lemon Test for
Establishment Clause violations. Lemon v. Kurtzman, 403 U.S.
602, 612-13 (1971). Each of the Lemon Tests three prongs are
violated by a broad reading of the requirement. First, under a broad
reading of the substantial burden requirement, RLUIPA has no
secular purpose. Despite the recitation of a secular purpose before
the Religious Freedom Restoration Act (RFRA), a statute which
almost always exempts religious entities from reasonable zoning
restrictions would reveal the alleged secular purpose to be a sham.
Second, the statute would inarguably advance religion under a
broad reading of its substantial purpose requirement. An
objective observer would undoubtedly perceive the extraordinary

ability of religious organizations to evade reasonable zoning

restrictions as an endorsement of religion on behalf of the
government. Finally, there is an excessive entanglement of religion
with government. A broad reading of the substantial burden
requirement essentially grants churches and other religious entities
the power to veto reasonable zoning restrictions which they are
disinclined to follow. Not only does this give churches
discretionary power which should be constitutionally reserved for
the government, it perpetuates the harm warned of by the U.S.
Supreme Court in Employment Division v. Smith by making such
churches a law unto [themselves]. Employment Division v.
Smith, 494 U.S. 872, 879 (1990).
For the foregoing reasons, the court should set aside
TNMCs Project approval with the lower court directed to enter a
judgment in favor of Appellant unless or until a full Environmental
Impact Report is prepared.
ARGUMENT
I.

RLUIPA SHOULD BE CONSTRUED

NARROWLY TO AVOID CHILLING
NONDISCRIMINATORY GOVERNMENT
ACTIVITY

A.

SONOMA COUNTY GRANTED ZONING

EXEMPTION TO TNMC BECAUSE OF
RLUIPAS CHILLING EFFECT

RLUIPA applies to land use regulations that substantially

burden the religious exercise of the landowner. 42 U.S.C.S.
2000cc. It applies to this case specifically as a result of subsection
(a)(2)(c), which extends RLUIPAs protections to cases where a
government entity is permitted to make individualized
assessments of the proposed uses for the property involved. Id.
Sonoma Countys ability to provide exemptions from zoning
regulations for religious uses is part of what makes its adherence to
RLUIPA necessary.
Under the standards of RLUIPA, a government may only
substantially burden religious exercise if its action furthers a
compelling interest and if the course of action taken is the least
restrictive means of achieving that compelling interest. Id. This is a
far more demanding standard than strict scrutiny, which applies to
some constitutional challenges. Under strict scrutiny, a government
entity still needs to show a compelling interest, but must show only

that the course of action was narrowly tailored to meet the

compelling interest. Defeating strict scrutiny is difficult, to be sure,
but it allows more options for accommodation than RLUIPA.
In the instant case, Sonoma County gave Project approval
to Petrankers application for a Master Use Permit (MUP) in
June 2014 by adopting a subsequent mitigated negative declaration
(SMND). Appellants Opening Brief at 20. In 2004, the printing
operation at the site was approved to produce only 100,000 books
per year. The Project approval almost completely deregulates press
production at TNMC. Id. at 29. Additionally, the 2004 approval
allowed one printing press at the site; the Project approval
sanctions five more printing presses. Id. Furthermore, the Project
approval permits commercial production of sacred objects and
Internet sales; increases the maximum occupancy of the press
buildings three-fold, from 27 persons to 80 persons; and removes
the previously enacted worker/housing ratio meant to ensure the
press facilities were operated as an accessory use. Id. at 30.
Finally, the Project approval adds 40,000 feet of permanent
storage, tripling the space used for printing operations from 18,750
to 60,000 square feet. Id. at 31.
The Countys approval of these adjustments was premised
on its characterization of the use as being an accessory to the
sites primary use. The Countys use of the term accessory is
ambiguous. Section 26C-12 of the Sonoma County Code of
Ordinances defines the term thus: Accessory use means a use of
land or a building that is related to and subordinate to the primary
use of the land or building located on the same lot. However, in
some uses the County appears to compare the square footage of the
site dedicated to running the printing press operations against the
Center generally. For instance, in its Project approval, the County
apparently based part of its accessory use determination on
figures provided by Petranker that concluded just 1.25% of the
land was used by the printing press operation. Not only does this
analysis conflict with the accessory definition listed in the Code
of Ordinances, according to the Appellant it mistakenly includes
land which is undeveloped or undevelopable. Appellants Opening
Brief at 23-24. If the County had compared building area to
building use, it would have found the printing press operation
constitutes 49% of building space.
The massive increase in storage and printing press
operations at the site were also approved by the County despite the
fact that the storage structures did not meet the strict requirements
applicable to a Wildland-Urban Interface Fire Area. In fact,

10

Appellant shows that the site was made exempt from a major fire
code in the area as early as 2008. Id. at 26. Additionally, Appellant
has contacted the Timber Cove Fire Protection District, an allvolunteer fire department which services the area. Appellant has
been informed that the project as approved by Sonoma County has
insufficient protections against the substantial risk of industrial
fire. Id. at 24-25. The TNMC site is in a high wildland fire
hazard severity zone, the area around which has been zoned as a
Rural Residential District (RRD) with no other significant
industrial operations. Id. The Fire District and the Sonoma County
Fire Chief agree that the fire department has neither the training
nor resources to respond to the type of danger posed by an
industrial operation of this size. Id. at 25-26.
Finally, the Project Approval included conditions requiring
termination of the printing press operations at the site if it were
conveyed to a property owner unaffiliated with Tibetan Buddhism.
Id. at 22. According to Appellant, this means that the same use
would no longer be considered an accessory use if a nonreligious
or non-Tibetan Buddhist owner took control of the property. Yet
the added storage and printing presses should be permitted under
either definition of accessory, given the numbers used by the
County, no matter the owner.
This signifies surrender to TNMCs interest in unfettered
religious exercise at the expense of the Countys compelling
interests in safety and nondiscrimination. Appellant provides
information suggesting that the County granted the accessory
designation solely on the basis of TNMCs religious character.
During one hearing, Supervisor Shirlee Zane drew attention to this
inconsistency, asking: [C]an anybody set up some type of factory
and say its for religious purposes and have that [accessory use
analysis] waived? Id. at 22-23. The response from Permit and
Resource Management Department Deputy Director Jennifer
Barrett was, Thats a policy call for the board. Id.
Governments fear accidentally crossing the invisible line
between merely burdening religious exercise and substantially
burdening religious exercise; there is no clear rule to help
governments delineate what sort of burdens are or are not
acceptable. Sonoma County and other governments reluctance to
challenge allegedly religious land use is understandable, for the
strict scrutiny standard imposed by RLUIPA is a difficult one to
meet. Guru Nanak Sikh Society v. County of Sutter, 326 F. Supp.
2d 1140, 1154 (E.D. Cal. 2003). Moreover, courts in California
and elsewhere have found that preventing religious organizations
from building worship sites inhibits religious exercise. E.g., Id. at

11

1152-53; Cottonwood Christian Center v. Cypress Redevelopment

Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002); Westchester Day
School v. Village of Mamaroneck, 280 F. Supp. 2d 230 (S.D.N.Y.
2003).
B. THE SUBSTANTIAL BURDEN
REQUIREMENT SHOULD BE READ
NARROWLY TO AVOID THE DANGER OF
RLUIPA BEING EXPLOITED AS A LOOPHOLE
TO EVADE REASONABLE ZONING LAWS
Because of governmental reluctance to push back against
religious organizations attempts to use land for purposes other
than that for which it was zoned, churches and other religious
entities may very well become immune from local zoning laws
if they are not already. 29 Seattle U. L. Rev. 805, 806 (2006).
Governments are wary of taking any action in opposition to a
religious organizations desires, but RLUIPA was meant to
address intentional discrimination and not zoning ordinances of
every stripe. Id. at 835-36.
In International Church of the Foursquare Gospel v. City
of San Leandro, the Ninth Circuit held that being able to build
space for a religious institution is an indispensable part of free
exercise. 673 F.3d 1059, 1069-70 (9th Cir. 2011). Despite agreeing
that a government action must do more than inconvenience
religious exercise, and that it must be oppressive to a
significantly great extent, the court went on to cite approvingly
of a California district court case which found a substantial burden
on religious exercise in the denial of a conditional use permit to
allow construction of a large church sufficient to hold 4,000
persons and to accommodate ministry programs. Id. at 1067-70.
The International Church of the Foursquare Gospel
decision can be distinguished from this case for a number of
reasons. First, the church in that case provided evidence that no
suitable alternative sites existed for services of the type the church
wished to hold. Id. at 1067. Appellant here has identified superior
alternative locations for the printing press operations TNMC
wishes to engage inlocations which are better zoned for
industrial printing operations and which have easier access to
shipping to Asia, the primary destination of TNMCs sales.
Appellants Opening Brief at 28-29. Moreover, Petranker
successfully operated the press operations in Berkeley, California,
for many years before relocating them (without County approval)
to their current location at the TNMC site. Id.

12

Second, the Ninth Circuits decision in International

Church of the Foursquare Gospel is distinguishable because there
had been an improper scrutiny of the churchs core religious
beliefs. 673 F.3d at 1069. Although the Church in that case had
expressed its religious belief in the necessity of meeting as a single
group, the lower court had accepted the Citys argument that the
church could hold multiple Sunday services or relocate some
services offsite. Id. No improper scrutiny of TNMCs religious
beliefs has occurred in the instant case. (However, Appellant has
rightly questioned whether Petranker/TNMC are acting pursuant to
sincere religious beliefs. For example, although Petranker has
claimed the printing operation must occur at its current location
because it is a sacred place, the history of operations occurring
elsewhere contradicts his claim. Appellants Opening Brief at 28.
Furthermore, Petranker in 2004 alleged that the press operation
does not operate as a conventional commercial business, but by
2010, the facility offered 551 products for sale on its website,
including incense, cushions, and wrapping paper. Id. at 16-17.)
Appellants approach would invoke appropriate scrutiny to ensure
that RLUIPA protections are not exploited as a loophole to
evade reasonable zoning restrictions.
Third, the Ninth Circuit criticized the Citys rejection of a
conditional use permit (CUP) to the Church based on the
proposed locations proximity (within a quarter mile) to a
hazardous materials business plan site. 673 F.3d at 1070. Because
all of the properties in the Assembly Use Overlay zoned district
were within a quarter mile of a hazardous materials business plan
site, the churchs CUP application would never succeed. Id. Citing
Guru Nanak, the court said a substantial burden on religious
exercise exists where government actions significantly . . .
lessened the possibility that future CUP applications would be
successful. Id. However, unlike the instant case, the Assembly
Use Overlay district in International Church of the Foursquare
Gospel was implemented only after the Church had expressed
interest in a property in the area. Id. at 1064. There was therefore a
greater likelihood that the zoning denial was made with
discriminatory motive, whereas the RRD zoning and WildlandUrban Interface Fire Area designations were already in effect upon
TNMCs application for zoning adjustment.
Finally, the Ninth Circuit correctly stated that a substantial
burden is one which pressures an adherent to modify his behavior
and to violate his beliefs, but subsequently interpreted RLUIPA
far too broadly. Id. at 1067. In rejecting the district courts
conclusion that neutral, generally applicable zoning laws could
only create incidental burdens on religious exercise, the Ninth

13

Circuit argued that the effect of that conclusion would be to

write[] RLUIPA's substantial burden provision out of RLUIPA.
Id. at 1067-68. Yet the court arguably did just that! After
expressing concern that the district courts rule would eliminate the
substantial burden requirement by minimizing the burden such
zoning laws create, the Ninth Circuit adopted an alternative rule
guaranteeing that virtually every zoning decision will be labeled a
substantial burden on religious exercise. Id. at 1068-69. In
particular, it dispensed with the claim that RLUIPA does not
insulate religious institutions from the harsh realit[ies] of the
marketplace. Id. at 1068 (quoting Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).
Instead, it found the delay, uncertainty, and expense caused by
zoning laws which exclude religious entities necessarily create a
substantial burden on religious exercise. Id. (quoting Saints
Constantine and Helen Greek Orthodox Church, Inc. v. City of
New Berlin, 396 F. 3d 895, 901 (7th Cir. 2005). This rule truly
writes the substantial burden provision out of RLUIPA, such that
any zoning decision is viewed as a substantial burden on religious
exercise.
Clearly, Congress purpose in passing RLUIPA was not to
allow religious entities to circumvent any zoning law that conflicts
with their beliefs. RLUIPA as drafted is identical in wording to the
Religious Freedom Restoration Act (RFRA), which was passed in
1993 in response to the Supreme Courts decision in the 1990 case
Employment Division v. Smith. 42 U.S.C.S. 2000bb. The stated
purpose of RFRA was not to grant religious persons a right to
ignore laws with which they disagreed, but instead to create what
the Congress viewed as a workable test for striking sensible
balances between religious liberty and competing prior
governmental interests. Id (emphasis added). If granting religious
entities freedom to sidestep all zoning laws had been the intent
behind RLUIPA, the U.S. Supreme Court certainly would not have
upheld the statute as a constitutional exercise of Congressional
power. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Under the substantial burden interpretation favored by the Ninth
Circuit in International Church of the Foursquare Gospel,
RLUIPA would violate the Establishment Clause of the First
Amendment. This is discussed in greater detail in Part II, below.
1.

San Jose Christian College v. City of Morgan Hill

Rather than perpetuate the tremendous deference to

religious entities favored by the Ninth Circuit in International
Church of the Foursquare Gospel, this court should adhere to the
narrower interpretation of the substantial burden requirement

14

reflected in the 2004 case San Jose Christian College v. City of

Morgan Hillalso a Ninth Circuit case. 360 F.3d 1024 (9th Cir.
2004). In that case, a private Christian college was denied a zoning
adjustment in part because of the colleges failure to comply with
environmental quality regulations. Id. at 1036.
Recognizing its duty to interpret RLUIPA consistently with
the intent of Congress, the Ninth Circuit found the term
substantial burden to mean that a significantly great restraint has
been placed on religious exercise. Id. at 1035. The denial of a
zoning adjustment in this case did not reach that threshold. The
college was being treated the same as all other applicants for
rezoning, yet the court found the college was simply adverse to
complying with the . . . ordinances requirements. Id. Though the
costs and procedural requirements incidental to urban land use had
affected the colleges ability to use the land it desired, no evidence
existed demonstrating that College was precluded from using
other sites within the city. Id. Accordingly, the college was not
substantially burdened by the zoning laws in effect.
2.

Civil Liberties for Urban Believers v. City of

Chicago

The Ninth Circuits narrower interpretation of the

substantial burden requirement was influenced by the Seventh
Circuits 2003 decision in Civil Liberties for Urban Believers v.
City of Chicago. 342 F.3d 752 (7th Cir. 2003). In the case, an
association of Chicago churches challenged the citys zoning laws,
which restricted the location of churches to R (Residential) zoned
areas. Churches could be allowed in a B (Business) or C
(Commercial) zoned area upon submission of a Special Use
permit, but approval was conditioned upon the design, location,
and operation of the proposed use consistent with the protection of
public health, safety, and welfare. Id. at 755. The Seventh Circuit
ultimately reached the conclusion that the conditions of the zoning
laws did not constitute a substantial burden under RLUIPA.
In coming to that conclusion, the Seventh Circuit expressly
rejected the interpretation favored by the Ninth Circuit currently.
The court correctly summarized the argument in favor of a broad
reading of the substantial burden requirement: Application of the
substantial burden provision to a regulation inhibiting or
constraining any religious exercise, including the use of property
for religious purposes, would render meaningless the word
substantial. Id. at 761. Under such a reading, the slightest
obstacle to religious exercise incidental to the regulation of land
use . . . could then constitute a burden sufficient to trigger

15

RLUIPA. Id. The court went on to find that the burdens the
churches wished to avoid (e.g., costs, procedural requirements,
etc.) result from any land use, and therefore cannot be described as
a substantial burden on religious exercise. Id.
The Ninth Circuit, in International Church of the
Foursquare Gospel, was critical of the Seventh Circuits ultimate
conclusion regarding what constitutes a substantial burden. To
create a substantial burden, the Seventh Circuit wrote, a law must
make religious exercise . . . effectively impracticable. Id. The
Ninth Circuit felt that a step too far and in fact saw support for this
position in the later Seventh Circuit case Saints Constantine and
Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396
F.3d 895 (7th Cir. 2005). In that case, the Seventh Circuit found a
substantial burden on religious exercise because of the delays and
expenses involved in finding a new location after a church was
denied access to the specific property on which it wished to locate.
Id. at 901. The court added: That the burden would not be
insuperable would not make it insubstantial. Id.
Nonetheless, even in its Saints Constantine and Helen
decision the Seventh Circuit recognizes that putting religious
institutions in too favorable a position may well violate the First
Amendment. Id. at 900. The court does offer, sua sponte, a
counterargument to this concernthat religious institutions are
particularly vulnerable to discrimination without procedural
safeguards in placealthough this seems to reiterate RLUIPAs
purpose without counteracting the potential First Amendment
violation inherent in favoring religion. Certainly neutralizing
discrimination is a worthy goal, but governments may not favor
religion over nonreligion. McCreary County v. ACLU, 545 U.S.
844, 875 (2005).
3.

Lighthouse Institute for Evangelism, Inc. v. City of

Long Branch

The Third Circuit also interpreted RLUIPAs substantial

burden requirement narrowly in the 2004 case Lighthouse
Institute for Evangelism, Inc. v. City of Long Branch. 100 Fed
Appx. 70 (3rd Cir. 2004). In that case, a church wished to locate in
the downtown area of the beachside town Long Branch, New
Jersey. The church was denied permission to locate downtown
because the area was not zoned for church use. Id. at 74. The
church later argued that it was similar to uses permitted in the
zoned area (in particular, secular assembly halls), an argument the
courts rejected because of a state statute prohibiting operation of
establishments with liquor licenses within 200 feet of a church; the

16

statute made churches dissimilar to secular assembly halls and

would hinder development in the area. Lighthouse Institute for
Evangelism, Inc. v. City of Long Branch. 510 F.3d 253, 270-71
(3rd Cir. 2007). Initially, however, the church made no attempt to
request a zoning variance or to characterize itself as similar to
secular assembly halls. 100 Fed. Appx. at 74.
The Court found there was no substantial burden on the
churchs religious exercise because it had in fact been meeting in a
rented location in the same district without its opportunity for free
exercise being curtailed. Id. at 76-77. The Third Circuit also noted
that the church had adequate alternatives by which it could operate
as a free-standing church elsewhere in the city. Id. at 77. For those
reasons, the Third Circuit was not convinced that a substantial
burden on the churchs free exercise opportunities existed.
4.

Midrash Sephardi, Inc. v. Town of Surfside

In 2004, the Eleventh Circuit Court of Appeals also

expressed a preference for a narrow reading of RLUIPAs
substantial burden requirement. In Midrash Sephardi, Inc. v.
Town of Surfside, two synagogues alleged that a zoning ordinance
which excluded religious institutions burdened their free exercise
because the approved locations were too far from their adherents
homes. 366 F.3d 1214, 1221 (11th Cir. 2004). Members of the
synagogues practiced Orthodox Judaism, which forbids the use of
cars on the Sabbath or other holidays. Id. By excluding the
synagogues from their desired locations, so the argument went, the
synagogues members had to walk further and there was therefore
a substantial burden on their ability to practice their religion.
The Eleventh Circuit disagreed. While walking may be
burdensome and walking farther may be even more so, we cannot
say that walking a few extra blocks is substantial, as the term is
used in RLUIPA, the court wrote. Id. at 1228.
Were we to adopt the synagogues reasoning,
it would be virtually impossible for a
municipality to ensure that no individual will
be burdened by the walk to a temple of choice.
Municipalities that allow religious exemptions
to alleviate even the small burden of walking a
few extra blocks would run the risk of
impermissibly favoring religion over other
secular institutions, or of favoring some
religious faiths over others. Id.

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Though there is arguably a difference in scope between the

burden in Midrash Sephardi and the instant case, the reasoning
utilized by the Eleventh Circuit seems applicable to the
interpretation of substantial burden favored by the Ninth Circuit
in its International Church of the Foursquare Gospel decision. If
the Ninth Circuits reasoning is followed, it will be practically
impossible to ensure no religious entity will be burdened by
reasonable zoning restrictions. If the incidental burden of seeking
an appropriate location for a commercial printing press
operationi.e., a location which does not create a significant risk
of danger to the surrounding community because of the fire hazard
such activity poses and is consistent with the zoningis awarded
an exemption from zoning ordinances, truly the risk of favoring
religion over secular institutions as a matter of right has already
occurred.
That the very narrow interpretation of cases like the
Seventh Circuits C.L.U.B. decision could make it impossible for
religious entities to establish a substantial burden does not justify
the movement of California courts toward an equally extreme
broad interpretation. The burden placed on religious exercise need
not be insuperable to be substantial, but it must require something
more than the mere denial of a zoning adjustment lest religious
institutions become law unto themselves. See Employment Division
v. Smith, 494 U.S. 872, 879 (1990) (citing Reynolds v. United
States, 98 U.S. 145, 167 (1879)). Whatever Congress intent in
implementing RFRA and RLUIPA, it cannot have been to make
religious actors immune from virtually all zoning regulations.
A broad reading of RLUIPAs substantial burden
requirement is a mistake to which this court should not adhere. In
addition to unduly favoring religious entities, such a reading has
the effect of discouraging local governments from defending
reasonable zoning restrictions. A better reading of RLUIPAs
substantial burden requirement would not permit the very existence
of uncertainty, delay, or expense on its own to stand in for a
substantial burden. Courts should instead look at RLUIPA claims
in context to determine whether the uncertainty, delay, or expense
caused by the zoning denial will be unusual given the type and
extent of activity in which the claimant is seeking to engage. In the
instant case, taking into account TNMCs commercial printing
press activities, requiring it to locate in an area that is equipped to
handle such operation and the dangers associated with it is unlikely
to be an unusual or substantial burden.
II.

BROADLY INTERPRETED, RLUIPA

VIOLATES THE ESTABLISHMENT CLAUSE

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OF THE FIRST AMENDMENT

To analyze the existence and impact of alleged religious
favoritism, courts use the endorsement test, asking whether the
governments actions have endorsed religion, via the Lemon Test.
Lemon, 403 U.S. at 612-13. The endorsement test requires viewing
the government action from the perspective of a reasonable,
objective observerthat is, one who is familiar with the legislative
history and the broader context within which the government
action arose. Through the Lemon Test, the fact-finder analyzes
whether the government action has a secular purpose, whether it
advances religion, and whether it leads to excessive entanglement
with religion. Id. Under the broad interpretation of RLUIPAs
substantial burden requirement approved by the Ninth Circuit in
International Church of the Foursquare Gospel, RLUIPA itself
would result in an Establishment Clause violation. This is another
reason that a broad interpretation of the RLUIPA substantial
burden requirement cannot be sustained.
First, RLUIPA must have a viable secular purpose. This
element of the Lemon Test is typically easily satisfied by the
government. McCreary County, 545 U.S. at 863. To the courts, a
governments desire to accommodate religious pluralism can be
separated from a desire to advance or promote religious beliefs or
religion generally. There is a difference between accommodating
religious pluralism and favoring religion; in cases where the U.S.
Supreme Court has found that a statute could not pass the first
prong of the Lemon Test, it was because a religious objective
permeated the governments action. Id. If the broad interpretation
of substantial burden were accepted, religious entities would
almost never be required to abide by reasonable zoning
restrictions. It is difficult to envision a secular purpose behind this
extreme result.
It is not enough that the government may be able to recite
some secular purpose, as evidenced by the cases where no secular
purpose was found. See Santa Fe Independent School District v.
Doe, 530 U.S. 290, 301 (2000) (alleged secular purpose of prayer
is to promote, among other things, honest and fair play, clean
competition, individual challenge to be one's best, importance of
team work, etc.); Edwards v. Aguillard, 482 U.S. 578, 581 (1987)
(academic freedom); Stone v. Graham, 449 U.S. 39, 41 (1980)
(historical reverence); School District of Abington Township v.
Schempp, 374 U.S. 203, 223 (1963) (promotion of moral values,
the contradiction to the materialistic trends of our times, the
perpetuation of our institutions and the teaching of literature). The
Courts role is to distinguish a sham secular purpose from a

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sincere one. Wallace v. Jaffree, 472 U.S. 38, 75 (1985)

(OCONNOR, J., concurring in judgment). Consequently, even
though Congress recited a secular purpose of balancing religious
liberty with government interests when it enacted RFRA and
RLUIPA, a broad reading of the substantial burden requirement
would show the purpose of balancing interests to be a sham. 42
U.S.C.S. 2000bb.
Next, RLUIPA must not advance religion as its primary
effect. The ability of governments to accommodate religious
exercise does not give them the ability to supersede the
Establishment Clause. Lee v. Weisman, 505 U.S. 577, 587 (1992).
This prong of the Lemon Test is violated when government action
endorses one religion over others, or when it endorses religion
generally. Id. at 585. To an objective observer, the broad
interpretation of RLUIPAs substantial burden requirement
would give the impression of government support for religion
generally; rather than rectifying inequities, the policy favors
religious entities, giving them a way to avoid zoning ordinances.
An objective observer would unquestionably perceive the
exceptional ability of religious entities to evade reasonable zoning
restrictions as stamped with government approval of religion as a
whole. See Santa Fe Independent School District, 530 U.S. at 308.
Last, RLUIPA must not create an excessive entanglement
between government and religion. Typically, this prong of the
Lemon Test questions whether the government has involved itself
to an inappropriate degree in a religious institutions administration
or call[s] for official and continuing surveillance. Walz v. Tax
Commission of New York, 397 U.S. 664, 674-75 (1970). Yet the
entanglement prong can also be used to consider whether religion
is too deeply entangled in the business of government. For
example, in the 1982 case Larkin v. Grendels Den, a state law
permitted churches to veto applications for liquor licenses. 459
U.S. 116 (1982). The U.S. Supreme Court found that the wall of
separation between religion and government is substantially
breached by vesting discretionary governmental powers in
religious bodies. Id. at 123. The Court went on to assert: The
Framers did not set up a system of government in which important,
discretionary governmental powers would be delegated to or
shared with religious institutions. Id. at 127. Surely the broad
interpretation of RLUIPAs substantial burden requirement is
akin to designating governmental power to churches, essentially
granting them veto power over zoning ordinances except in the
most extraordinary circumstances. Like the state law in Larkin, a
broad interpretation of the substantial burden requirement
exchanges church authority for the reasoned decisionmaking of a

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public legislative body acting on evidence, a scheme which

[o]rdinary human experience confirms is at odds with the U.S.
Constitution.
CONCLUSION
Because a broad interpretation of RLUIPAs substantial
burden requirement has the effect of chilling governments from
defending reasonable zoning restrictions and fails all three prongs
of the Lemon Test, it is a violation of the Establishment Clause and
cannot be sustained. This court should not support the sweeping
zoning exemptions granted to TNMC for its commercial printing
press operations. Such exemptions were granted on the basis of a
broad reading of RLUIPAs substantial burden requirement
which made Sonoma County unwilling to challenge the Centers
free exercise claim and which is likely unconstitutional.
TNMCs Project approval should be set aside with the
lower court directed to enter a judgment in favor of Appellant
unless or until a full Environmental Impact Report is prepared.
Date: December 23, 2015
By /s/ Amanda Knief
AMANDA KNIEF
American Atheists Legal Center
Attorney for Amicus Curiae

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CERTIFICATE OF WORD COUNT

Pursuant to California Rules of Court, rule 8.204(c)(1), the

undersigned certifies that the word count for the Amicus Curiae is
less than 14,000 words. The undersigned relied on the word count of
a Microsoft Word processing program in preparing this certificate.
I certify under penalty of perjury under the laws of the State
of California that the foregoing is true and correct. Executed in
Washington, D.C.

DATED: December 23, 2015

By /s/ Amanda Knief
AMANDA KNIEF
American Atheists Legal Center
Attorney for Amicus Curiae

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DECLARATION OF SERVICE

I declare that I am over the age of eighteen years and am not a party to this action. I am a
resident of or employed in the district where the mailing took place. My business address is 1220
L St. NW , Suite 100-313, Washington, D.C. 20005.
On December 23, 2015, I served the following document:
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ADDRESSED TO:
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foregoing is true and correct.
Executed on December 23, 2015
By /s/ Amanda Knief
AMANDA KNIEF
American Atheists Legal Center
Attorney for Amicus Curiae

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