                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           MAR 14 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
HARBOR MISSIONARY CHURCH                         No. 14-56137
CORPORATION,
                                                 D.C. No. 2:14-cv-03730-R-VBK
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

CITY OF SAN BUENAVENTURA;
JEFFREY LAMBERT, in his official
capacity as Community Development
Director; MARK WATKINS, in his
official capacity as City Manager;
CHERYL HEITMANN, in her official
capacity as Mayor and presiding City
Councilmember; ERIK NASARENKO, in
his official capacity as Deputy Mayor and
City Councilmember; NEAL ANDREWS,
in their official capacities as City
Councilmembers; JAMES L. MONAHAN,
in their official capacities as City
Councilmembers; CARL E.
MOREHOUSE, in their official capacities
as City Councilmembers; MIKE TRACY,
in their official capacities as City
Councilmembers; CHRISTY WEIR, in
their official capacities as City
Councilmembers; DAN LONG, in his
official capacity as Chair of the Planning


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Commission; NANCY FRANCIS, in her
official capacity as Vice Chair of the
Planning Commission; CHRISTOPHER
BECK, in their official capacities as
Planning Commissioner; SCOTT
BOYDSTUN, in their official capacities as
Planning Commissioner; LAURA
DUNBAR, in their official capacities as
Planning Commissioner; DAVID
FERRIN, in their official capacities as
Planning Commissioner; RONDI
GUTHRIE, in their official capacities as
Planning Commissioner,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted February 2, 2015
                               Pasadena, California

Before: PREGERSON, KLEINFELD, and NGUYEN, Circuit Judges.

      In 2008, Harbor Missionary Church (“the Church”) commenced Operation

Embrace to provide limited care and religious services for homeless men and

women living in Ventura (officially the City of San Buenaventura) (“the City”). In

January 2013, the City told the Church that it needed to obtain a conditional use

permit to continue its homeless ministry. In February 2013, the Church applied for

a conditional use permit, which the City denied. The Church then filed suit

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claiming that the City’s denial infringed on its religious practices and, pending the

lawsuit, sought a preliminary injunction to keep open its ministry to the homeless.

The district court denied the Church’s request, holding that a preliminary

injunction was not appropriate because the Church faced no substantial burden in

having to move its “homeless services” to another location, and, even if it did, the

complete denial of the permit was the least restrictive way to mitigate the City’s

safety concerns. We reverse the district court’s substantial burden determination

and its least restrictive means analysis, and remand.

                                  BACKGROUND

      In 2004, the Church purchased real property already permitted by the City to

operate both as a church and a daycare center. In 2008, the Church started

Operation Embrace on this property to provide spiritual guidance and other basic

needs to the City’s homeless men and women—offering religious teachings,

worship music, prayer, clothing, food, showers, counseling, and other support.

The Church believes that its homeless ministry is part of its religious duty to serve

“the least of these” among us (citing Matthew 25:34–46). The Church also

believes that providing showers and clothing and sharing meals with homeless men

and women—when done within the walls of the Church under a religious

mandate—constitute sacred duties.


                                          3
      Operation Embrace drew in homeless individuals from surrounding areas,

which prompted concerns from the neighborhood. Residents reported incidents

involving threats, trespassing, public nudity, and substance abuse. The Church

took a variety of steps to address these concerns, including employing a security

guard, enforcing a strict no-loitering rule, requiring identification, escorting out of

the neighborhood anyone not admitted to Church services, coordinating regularly

with social service agencies, strengthening its neighborhood patrols, maintaining a

public hotline for complaints, and coordinating its hours of operation with the

elementary school.

      In January 2013, the City told the Church that it needed a conditional use

permit to continue Operation Embrace. In February 2013, the Church applied for a

permit. City staff members, after studying the issue, meeting with Church

officials, and hosting a public meeting, issued a report recommending that the City

grant the permit subject to conditions proposed by the staff. Despite these

recommendations, the City Planning Commission denied the Church’s request for

a conditional use permit flat-out.

      The Church then filed suit in the district court claiming that the City’s denial

of a conditional use permit violated the Church’s rights under the Religious Land




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Use and Institutionalized Persons Act (“RLUIPA”)1 and the First Amendment of

the United States Constitution.2 The Church asked the court to preliminarily enjoin

the City from enforcing regulations that would shut down the Church’s homeless

ministry, pending the outcome of the lawsuit.

      The district court determined that the Church was unlikely to succeed on its

RLUIPA claim and therefore denied the preliminary injunction. The district court

held that the Church failed to show that the denial of a conditional use permit

constituted a substantial burden on its religious exercise because the Church could

continue its traditional religious activities at the church, while conducting its

“homeless services” at another location at a distance from the neighborhood. The

district court also held that, even if the burden on the Church’s religious exercise

were substantial, excluding Operation Embrace from the neighborhood was the

least restrictive means of advancing a compelling governmental interest in public

health and safety.

      1
         RLUIPA provides that a government land-use regulation “that imposes a
substantial burden on the religious exercise of a . . . religious assembly or
institution” is unlawful “unless the government demonstrates that imposition of the
burden . . . is in furtherance of a compelling governmental interest; . . . and is the
least restrictive means of furthering that compelling governmental interest.” 42
U.S.C. § 2000cc(a).
       2
         RLUIPA is more protective of religious practice than the First Amendment.
See Mayweathers v. Newland, 314 F.3d 1062, 1070 (9th Cir. 2002). Accordingly,
we only need to determine whether the Church established a likelihood of success
on its RLUIPA claim.

                                           5
      The district court erred in its analysis by minimizing the burden imposed on

the Church’s free exercise of religion. The district court also erred in failing to

properly consider the conditions recommended by the City’s staff when it

determined that a complete denial of the conditional use permit was the least

restrictive means to achieve the City’s compelling interest in public safety.

                                      ANALYSIS

      This court has jurisdiction over the Church’s interlocutory appeal from the

district court’s order pursuant to 28 U.S.C. § 1292(a)(1). We review a district

court’s decision regarding a preliminary injunction for abuse of discretion. Bay

Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730

(9th Cir. 1999).

      A party seeking a preliminary injunction must establish that: (1) it is likely

to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of

preliminary relief, (3) the balance of equities tips in its favor, and (4) a preliminary

injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20 (2008).

1. Likelihood of Success on the Merits

       To succeed on a RLUIPA claim, “the plaintiff must demonstrate that a

government action has imposed a substantial burden on the plaintiff’s religious


                                            6
exercise.” Int’l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d

1059, 1066 (9th Cir. 2011); see 42 U.S.C. § 2000cc(a)(1). Once the plaintiff has

shown a substantial burden, the government must show that its action was “the

least restrictive means of furthering [a] compelling governmental interest.” 42

U.S.C. § 2000cc(a)(1)(B).

      a. Substantial Burden

      The City’s denial of the conditional use permit prevents the Church from

conducting its homeless ministry, an integral part of its religion, without suffering

substantial delay, uncertainty, and expense. Therefore, the district court erred in

determining that the Church’s religious exercise was not substantially burdened by

denial of a conditional use permit.

      In a declaration, the pastor of the Church, Sam Gallucci, cites to the Bible at

Matthew 25:34–46 as one of the sources for the Church’s belief that its homeless

ministry is part of its religious duty to feed the hungry and clothe the naked.

Gallucci also cites to the mother Church’s position papers, which provide that the

Church should exercise “Christian compassion” towards the oppressed, poor, and

hungry. The Church asserts that its religion calls for it “to provide for both

spiritual and temporal needs together.” The district court erred by questioning the

validity of the Church’s religious beliefs and by determining that its homeless


                                           7
ministry could be divided piecemeal when the Church insisted on the importance

of keeping its homeless ministry as a whole at the same location. See Int’l Church

of the Foursquare Gospel, 673 F.3d at 1069 (“[W]hile a court can arbiter the

sincerity of an individual’s religious beliefs, courts should not inquire into the truth

or falsity of stated religious beliefs.” (citing United States v. Ballard, 322 U.S. 78,

86–87 (1944)).

      Further, the City’s denial of a conditional use permit prevents the Church

from conducting its homeless ministry at its current location. Currently, if the

Church wishes to conduct its homeless ministry—a ministry the Church believes to

be an integral part of its religious exercise—the Church must relocate. In addition

to selling its current property, the Church would have to raise an estimated $1.4

million to relocate, an expense the City does not dispute. The substantial cost

associated with relocating the site of the Church demonstrates that the denial of the

conditional use permit substantially burdens the Church’s religious exercise. See

id. at 1068 (“[W]hen the religious institution has no ready alternatives, or where

the alternatives require substantial delay, uncertainty, and expense, a complete

denial of the [religious institution’s] application might be indicative of a substantial

burden.” (alteration in original) (quotation omitted)).

      b. Least Restrictive Means


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      Because the Church has shown a substantial burden, the City must show that

it employed the least restrictive means available to further a compelling

governmental interest. Id. at 1066. The district court did not err in finding that the

City had a compelling interest in promoting public safety and in preventing crime.

See Schall v. Martin, 467 U.S. 253, 264 (1984) (holding that protecting the

community from crime is a compelling interest). But the district court failed to

apply the proper analysis when it determined that the City used the least restrictive

means to achieve this goal.

      At the City’s suggestion, the Church applied for a conditional use permit to

continue its homeless ministry. The application detailed a wide variety of

measures the Church had implemented to address the concerns of its neighbors.

The City’s staff charged with assessing the Church’s application recommended that

the use permit be approved, subject to additional conditions to further mitigate

some of the outreach program’s impacts on the local community. The City

concedes that it considered such a conditional use permit as a potentially less

restrictive way to achieve the City’s interests. Though the record is mixed,

evidence indicates that implementing these conditions might have achieved the

City’s health and safety interests, and that the Church was perhaps willing to

comply with some of the suggested conditions. Nevertheless, the district court


                                          9
failed to give appropriate consideration to the viability of such a conditional use

permit when, in a single sentence, it concluded summarily that Operation Embrace

was “so incompatible” with the neighborhood and so detrimental to public safety

that outright denial was the City’s only option.

      The district court abused its discretion when it concluded, without analysis,

that a complete denial of the conditional use permit was the least restrictive means

by which the City could further its compelling interest in public safety. On

remand, the district court should make factual findings, after such proceedings as

may be necessary, about what conditions, if any, the Church would or would not

comply with if the City had granted a conditional use permit. The court should

also detail why the conditional use permit recommended by the City’s staff would

or would not sufficiently protect the neighborhood from any negative effects

shown to be the result of the Church’s ministry to the homeless.

                                  CONCLUSION

      For the above reasons, we reverse the district court’s denial of the

preliminary injunction and remand for further proceedings consistent with the

views herein expressed.

REVERSED AND REMANDED.




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