Fed. Dist. Court of AZ Concluded a City Ordinance Treated a Church on Less Than Equal Terms with Nonreligious Assemblies When Required a Conditional Use Permit

This post was authored by Olena Botstheyn, Esq.

In the Fall 2016, Stephen Henry rented a property in the City of Somerton (“City”) with an intention to establish a church there (“Iglesia”). The City’s zoning ordinance (“Ordinance”) required a conditional use permit (“CUP”) to start a church in this location. When Henry leased the property, he did not apply for a CUP, but proceeded with opening the Iglesia without a permit. Prior to opening the church, he conducted certain electrical repairs, and although he was informed by the building inspector, Lopez, that such repairs required an electrical permit, he never applied for one either. Lopez then issued a Stop Work Order for performing unauthorized electrical repairs, and Carmen Juarez, the City’s Community Development Director, informed Henry that an electrical permit would not be issued without a CUP.

In October 2016, Henry sent a letter to the City, arguing that the City Ordinance conflicted with Arizona and Federal laws protecting the free exercise of religion and that he did not intend to apply for a CUP. The Iglesia opened in November 2016, and has been operating ever since. Legal proceedings followed, including a criminal proceeding, pertaining to Henry’s work in the church without required permits. In August 2017, Arizona Attorney General’s office informed the City that the Ordinance appeared to violate Arizona’s Free Exercise of Religion Act (“FERA”). In September 2017, the City amended the Ordinance and a CUP was no longer required to establish a church. The criminal charges were later dismissed, and Henry commenced this action, bringing claims for FERA violation, First Amendment right to free exercise of religion violation, malicious prosecution under state and federal law, a claim that the City’s Zoning Code constitutes a prior restraint on religious exercise and an equal protection violation under federal and state law. Both the Plaintiffs and Defendants filed motions for summary judgement, and the parties had to show no genuine factual dispute to obtain one.

First, the court addressed the Plaintiffs’ motion, and specifically a claim that the City’s Ordinance contains language that constitutes a prior restraint on their First Amendment rights. The court concluded that this claim was not ripe, and therefore Plaintiffs had no standing for this claim. To assert this claim Plaintiffs had to apply for a CUP and receive a negative decision. Since they had never done that, the court dismissed the motion with regard to this claim.

The court went on to consider Defendants’ motion for summary judgment on all remaining claims and on qualified immunity for the City officials. With regard to immunity, the court engaged in a requisite test and concluded that both Juarez and Lopez were entitled to qualified immunity. The main issue was whether a reasonable official in their position would have known that acting in line with the zoning ordinance and requiring Henry to obtain the necessary permits would violate his constitutional rights. The court determined that they would not have known that and that the City shall be the only Defendant.

Further, the court entered the summary judgment on the FERA claim for the Plaintiffs, having concluded that the CUP requirement contained in the unamended version of the Ordinance treated the Iglesia on less than equal terms with nonreligious assemblies. FERA generally provides that “[g]overnment shall not 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.” Since the Ordinance did not require that nonprofit fraternal or social club organizations apply for a CUP, the court concluded that it treated the Iglesia on less than equal terms, and granted summary judgment for this claim to the Plaintiffs.

The court then granted summary judgment for all other claims to the Defendants. When arguing their free exercise of religion claim, the Plaintiffs were required to show that the Ordinance was only enforced against religious institutions and failed to do so, as the Ordinance applied both to religious and secular uses. Further, when arguing malicious prosecution, Plaintiffs failed to show that criminal proceedings against Henry were instituted without probable cause. Defendants argued that the mere fact that Henry conducted services in his church without a CUP constituted a probable cause, and the court agreed. Finally, when arguing equal protection claim, Plaintiffs failed to show discriminatory intent in the actions of the City’s employees and identify individuals who were treated differently than Henry after refusing to obtain a CUP. The court found that “to the contrary, if the City had not required Mr. Henry to apply for a CUP, then it would have been treating him differently that those who had been required to obtain one.” The court thus granted the Defendants summary judgment on all claims, except for the FERA claim.

Henry v City of Somerton, 2021 WL 2514686 (D AZ 6/17/2021)