                                                          F I L E D
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                          June 20, 2006
                                  PUBLISH
                                                     Elisabeth A. Shumaker
                                                         Clerk of Court
             UNITED STATES COURT OF APPEALS
                      TENTH CIRCUIT



GRA CE UNITED M ETH ODIST
C HU RC H,

      Plaintiff-Appellant,

v.

C ITY O F C HEY EN N E; C ITY OF
C HEY EN N E B OA RD O F
A D JU STM EN T; D O RO TH Y
W ILSO N, City of Cheyenne
D evelopment D irector; C HEY ENNE
CITY C OU NC IL,

      Defendant-Appellees,

M OUN TVIEW PARK
H O ME O W N ER S’ A SSO CIA TION,
                                            No. 03-8060
      Defendant-Intervenor-Appellee,

-------------------------

U N ITED STA TES O F A M ER ICA,

      Plaintiff-Intervenor-Intervenor,

TH E BEC KET FU N D FO R
R ELIG IOU S LIB ER TY ,

      Amicus Curiae.
                          OPIN ION ON REHEARING


                  Appeal from the United States District Court
                          for the District of W yoming
                             (D.C. No. 02-CV-35-B)




Samuel M artin Ventola, of Rothgerber Johnson & Lyons LLP, Denver, Colorado,
for the Plaintiff/Appellant.

Stephen H. Kline, of Kline Law Office, Cheyenne, W yoming (M ichael D. Basom,
Attorney for City of Cheyenne, Cheyenne, W yoming, on the brief), for the
Defendants/Appellees.

Lowell V. Sturgill, Jr., Appellate Staff, Civil Division, Department of Justice,
W ashington, D .C . (Peter D . K eisler, Assistant Attorney General, M atthew H.
M ead, United States Attorney, and M ark Stern, Appellate Staff, Civil Division,
Department of Justice, W ashington, D.C., with him on the brief), for the Plaintiff-
Intervenor, United States of America.

Roman P. Storzer, Anthony Picarello Jr., and Derek L. Gaubatz, filed a brief for
Amicus Curiae, The Becket Fund for Religious Liberty.




Before BR ISC OE, H O LLO W AY, and SEYM OUR, Circuit Judges.


SE YM O UR, Circuit Judge.




                                        -2-
      Grace United M ethodist Church (Grace United or Church), a non-profit

religious corporation affiliated with the United M ethodist Church, filed a civil

action pursuant to the Religious Land Use and Institutionalized Persons Act

(RLUIPA ), 42 U.S.C. § 2000cc et seq., and 42 U.S.C. § 1983 against the City of

Cheyenne, W yoming and other affiliated defendants (hereinafter collectively the

City). Grace United alleged that defendants’ actions in denying it a license to

operate a daycare in a residential zone violated (1) RLUIPA by imposing a

substantial burden on the Church’s exercise of religion; (2) the First Amendment

by depriving the Church of its right to free exercise of religion and freedom of

speech, assembly, and association; and (3) the Fourteenth Amendment’s due

process and equal protection clauses by denying the Church use of its property.

M ountview Park Homeowners’ Association, a non-profit corporation organized by

and consisting of homeowners within the M ountain Park Addition of Cheyenne,

W yoming, intervened in the action as a matter of right. See F ED . R. C IV . P.

24(a)(2). M ountview sought a declaration that the proposed daycare center would

violate neighborhood restrictive covenants.

      The district court granted summary judgment to defendants on the C hurch’s

constitutional claims, Grace United M ethodist Church v. City of Cheyenne, 235 F.

Supp. 2d 1186, 1201-02 (D.W yo. 2002), and a jury found against the Church

under RLUIPA and the restrictive covenants. As a result of the jury’s

determinations, the district court issued a post-trial judgment enjoining the

                                           -3-
Church from building and operating the daycare center.

      W e initially affirmed the district court’s summary judgment rulings, as w ell

as its associated trial rulings and the jury verdict on the RLUIPA claim. Grace

United M ethodist Church v. City of Cheyenne, 427 F.3d 775 (10th Cir. 2005). W e

held it unnecessary to address Grace United’s additional contentions that

M ountview had no standing to intervene, that the district court had no jurisdiction

over the restrictive covenant claims, and that in any event the property on which

the Church sits is not governed by the covenants. Id. at 804. Upon consideration

of Grace United’s petition for rehearing and petition for rehearing en banc,

however, we make minor changes to the original opinion and grant panel

rehearing to address the issues regarding M ountview’s intervention and the

restrictive covenants. Our previous opinion, see Grace United M ethodist Church,

427 F.3d 775, is vacated, and this revised opinion is issued in its stead.



                                           I

      Grace United is the owner of real property in a low-density residential (LR-

1) zone in Cheyenne, W yoming. The property was deeded to Grace United in

1956 subject to neighborhood covenants, and has been operated as a M ethodist

church since that time. In M arch 2001, Grace United sought a license from the

City of Cheyenne to operate a 100-child daycare center in the LR-1 zone. The

proposed facility would provide care for children newly born to age thirteen,

                                          -4-
would be open to the public regardless of religious affiliation, and would operate

eighteen hours a day – from 6:00 a.m. until midnight – seven days a week.

Because the applicable Cheyenne zoning ordinance prohibited any entity from

operating a daycare w ith more than twelve children in an LR-1 zone, the City’s

Development Director, D orothy W ilson, denied the licence.

      Grace United appealed that decision by filing an application for a variance

from the LR-1 zoning restrictions. The matter w as set for a public hearing in

front of the City’s Board of Adjustment, the body authorized to hear appeals from

adverse zoning decisions. At the hearing, Grace United was represented by

counsel and was permitted to present witnesses and evidence. The Church’s

witnesses testified that the proposed daycare would charge a fee for its services

comm ensurate with fees charged by other daycare facilities in Cheyenne, and

would hire caregivers and instructors who were not members of the Church and

who may or may not have any religious training. Subsequent to the hearing, the

Board of Adjustment unanimously denied the variance on the following bases: (1)

the proposed daycare center was not a church, primary or secondary school, or

any other similar use permitted within the LR-1 zone, as defined by the Cheyenne

Laramie County Zoning Ordinance, and the Board therefore had no authority or

discretion to grant the variance; (2) the Church failed to demonstrate that the

proposed use was in conformance with all other applicable policies adopted by the

City or Laramie County; and (3) the proposed use was incompatible with the

                                         -5-
neighborhood and would harm community goals.

      Grace United filed this action against the City of Cheyenne, the Board of

Adjustment, Dorothy W ilson, in her official capacity as Development Director for

the City of Cheyenne, and the City Council, alleging that the Board’s decision to

deny the variance violated RLUIPA, and the First and Fourteenth Amendments.

The City filed a motion to dismiss, which the district court converted into a

motion for summary judgment. Grace United responded by filing a motion for

partial summary judgment on its RLUIPA claim. The court granted the City’s

motion in part and dismissed all of the Church’s constitutional claims, but it

determined there was sufficient evidence to allow the RLUIPA claim to go to

trial. Subsequent to the district court’s ruling on the summary judgment motions,

M ountview intervened to prevent a violation of the covenants of the

neighborhood.

      The RLUIPA and covenant issues proceeded to jury trial. The jury found

that Grace United had failed to prove the proposed operation of the daycare center

was a sincere exercise of religion under RLUIPA, and concluded that the daycare

center would be in violation of the covenants of the neighborhood. As a result,

the district court permanently enjoined Grace United from using its property as a

daycare center in violation of Cheyenne’s land use regulations and W yoming’s

licensing requirements. In so doing, the court determined that the zoning

ordinance was enacted pursuant to a compelling governmental interest and was

                                         -6-
accomplished by the least restrictive means. This appeal followed.



                                          II

                Dism issal of Grace United’s C onstitutional Claim s

      Grace United contends the district court erred by dismissing its

constitutional claims. As previously noted, the Church brought claims for relief

pursuant to § 1983 alleging that the City, acting under the color of state law,

deprived it of its constitutional rights to the free exercise of religion and freedom

of speech, assembly, and association in violation of the First Amendment, and due

process and equal protection in violation of the Fourteenth Amendment. The

district court granted summary judgment to the City on each of these claims.

      W e review de novo the district court’s grant of summary judgment. Keys

Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1270 (10th Cir. 2001).

Summary judgment should be granted if the evidence submitted shows “that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” F ED . R. C IV . P. 56(c). “W hen applying this

standard, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.” Keys Youth Servs., 248 F.3d at

1270 (quotation omitted). A mere scintilla of evidence in support of the

nonmoving party’s position, however, is insufficient to create a genuine issue of

material fact. Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).

                                         -7-
Free Exercise of Religion

        Grace United maintains that the City’s action in denying the Church a

zoning variance prevents it from engaging in religious instruction on its property.

Relying on Employment Div. v. Smith, 494 U.S. 872 (1990), the district court held

that the City’s land use regulations are neutral rules of general applicability which

do not substantially burden the Church’s exercise of religion. On appeal, Grace

United contends the City’s zoning ordinances are not neutral laws of general

applicability because they allow “case-by-case” exceptions. It also argues that

even if the land use regulations at issue are neutral laws of general applicability,

the “hybrid-rights” exception to Smith applies and requires that the City’s zoning

regulations satisfy heightened scrutiny. W e address each of these arguments in

turn.

        W hile the First Amendment provides absolute protection to religious

thoughts and beliefs, the free exercise clause does not prohibit Congress and local

governments from validly regulating religious conduct. Reynolds v. United

States, 98 U.S. 145, 164 (1878). Neutral rules of general applicability normally

do not raise free exercise concerns even if they incidentally burden a particular

religious practice or belief. Smith, 494 U.S. at 879 (free exercise clause “does not

relieve an individual of the obligation to comply with a valid and neutral law of

general applicability on the ground that the law proscribes (or prescribes) conduct

that his religion prescribes (or proscribes)” (internal quotation omitted)). Thus, a

                                         -8-
law that is both neutral and generally applicable need only be rationally related to

a legitimate governmental interest to survive a constitutional challenge. United

States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). On the other hand, if a

law that burdens a religious practice is not neutral or generally applicable, it is

subject to strict scrutiny, and the burden on religious conduct violates the Free

Exercise Clause unless it is narrowly tailored to advance a compelling

governmental interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 546 (1993). Therefore, our first step in analyzing Grace U nited’s

free exercise claim is to determine which level of scrutiny to apply.



                       N eutral and Generally Applicable Laws

      A law is neutral so long as its object is something other than the

infringement or restriction of religious practices. Id. at 533 (a “law lacks facial

neutrality if it refers to a religious practice without a secular meaning discernable

from the language or context”). In the instant case, there is no dispute that the

zoning ordinance at issue is neutral on its face. Instead, the parties disagree

regarding whether the regulation is “generally applicable.”

      According to the Church, the ordinance is discriminatorily applied because

the regulation permits exceptions on a case-by-case basis. 1 As a result, the

      1
       Grace United cites the following provisions from Section 41.113 of the
City of Cheyenne’s zoning code as support for the proposition that the City
                                                                     (continued...)

                                          -9-
Church argues, the denial of the requested variance should “undergo the most

rigorous of scrutiny” before the burdening of religious practice can be justified.

Aplt. Br. at 22 (quoting City of Hialeah, 508 U.S. at 546). The City counters that

Grace United submitted no evidence suggesting the ordinance was enacted due to

religious animus or was selectively or discriminatorily applied. M oreover, it

claims that it never engaged in “‘a pattern of ad hoc discretionary decisions

amounting to a system’ of individual assessments.” Aple. Br. at 16 (quoting

Axson-Flynn v. Johnson, 356 F.3d 1277, 1299 (10th Cir. 2004)). According to the

City, the zoning ordinance simply does not permit anyone, religiously motivated

or otherwise, to operate a daycare center in an LR-1 zoned area.

       In Smith, the Supreme Court noted that “where the State has in place a

system of individual exemptions, it may not refuse to extend that system to cases

of ‘religious hardship’ without compelling reason.” 494 U.S. at 884 (quoting

Bowen v. Roy, 476 U.S. 693, 708 (1986)). W e treat this language as the

“individualized exemption” exception to Smith’s rule regarding neutral and

generally applicable laws. See Axson-Flynn, 356 F.3d at 1294-95. Based on

       1
       (...continued)
allows “case-by-case exceptions”:
      The following uses may be permitted by the Board.
      ...
      (b) Churches
      ...
      (f) Primary and secondary schools
      (g) O ther uses similar to those permitted in this district . . . .
Aplt. Br. at 27-28.

                                           -10-
Smith and City of Hialeah, the individualized exemption exception inquiry can be

summarized as follows: as long as a law remains exemptionless, it is considered

generally applicable and religious groups cannot claim a right to exemption;

however, when a law has secular exemptions, a challenge by a religious group

becomes possible. See City of Hialeah, 508 U.S. at 537; Smith, 494 U.S. at 884.

      “The [Supreme] Court has never explained with specificity what constitutes

a ‘system’ of individualized exceptions.” Axson-Flynn, 356 F.3d at 1297. The

classic example of such a system is the unemployment compensation benefits

regime challenged by a Seventh Day Adventist in Sherbert v. Verner, 374 U.S.

398 (1963), the source of Smith’s individualized assessments carve-out. See

Smith, 494 U.S. at 884. Sherbert involved a plaintiff who refused to w ork

Saturdays due to her religious beliefs and was denied unemployment benefits by

government employees who were afforded considerable discretion in assessing

applicants’ eligibility for benefits. See Sherbert, 374 U.S. at 399-402; see also

Smith, 494 U.S. at 884 (“the Sherbert test . . . was developed in a context that lent

itself to individualized governmental assessment of the reasons for the relevant

conduct”). To ensure that individuals do not suffer unfair treatment on the basis

of religious animus, subjective assessment systems that “invite consideration of

the particular circumstances” behind an applicant’s actions, such as the

government benefits regime in Sherbert, trigger strict scrutiny. Smith, 494 U.S. at

884 (quotation omitted).

                                         -11-
      Grace United seems to be asking us to adopt a per se rule requiring that any

land use regulation which permits any secular exception satisfy a strict scrutiny

test to survive a free exercise challenge. Consistent with the majority of our

sister circuits, however, we have already refused to interpret Smith as standing for

the proposition that a secular exemption automatically creates a claim for a

religious exemption. See Axson-Flynn, 356 F.3d at 1297 (a system of

individualized exemptions “is one in which case-by-case inquiries are routinely

made, such that there is an ‘individualized governmental assessment of the

reasons for the relevant conduct’ that ‘invite[s] considerations of the particular

circumstances’ involved in the particular case” (quoting Smith, 494 U.S. at 884)

(emphases added)). As the district court correctly observed, several “federal

courts have held that land use regulations, i.e., zoning ordinances, are neutral and

generally applicable notwithstanding that they may have individualized

procedures for obtaining special use permits or variances.” Grace United

M ethodist Church, 235 F. Supp. 2d at 1200 (citing cases). Indeed, in the land use

context, the Sixth, Seventh, Eighth, and Eleventh Circuits have rejected a per se

approach and instead apply a fact-specific inquiry to determine whether the

regulation at issue was motivated by discriminatory animus, or whether the facts

support an argument that the challenged rule is applied in a discriminatory

fashion that disadvantages religious groups or organizations. See, e.g., Civil

Liberties For Urban Believers v. City of Chicago, 342 F.3d 752, 764-5 (7th Cir.

                                         -12-
2003) (ordinance permitting churches in all residential areas but requiring special

use approval to operate churches in commercial and business areas and limiting

church operation in manufacturing areas held neutral laws of general

applicability); First Assembly of God of Naples v. Collier County, 20 F.3d 419,

423-24 (11th Cir. 1994) (city’s ordinance prohibiting homeless shelters in certain

areas held neutral and of general applicability because motivated by health and

safety concerns, applied to both church and secular group homes and did not

completely prohibit operation of homeless shelters); Cornerstone Bible Church v.

City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991) (zoning ordinance excluding

churches and other non-profits from city’s central business district had no impact

on religious belief and was general law applying to all land use in city).

According to these courts, although zoning laws may permit some individualized

assessment for variances, they are generally applicable if they are motivated by

secular purposes and impact equally all land owners in the city seeking variances.

See, e.g., First Assembly of God of Naples, 20 F.3d at 423-24.

      Although we have not had occasion since Smith and City of Hialeah were

decided to specifically address whether zoning laws with some individualized

procedures for obtaining variances are nevertheless generally applicable, circuit

precedent is instructive and guides our analysis. In its assessment of the general

applicability of Cheyenne’s zoning ordinance, the district court specifically relied

on Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998).

                                         -13-
In Swanson, a Christian home-schooled student and her parents brought suit

against the local school district and its officials, alleging that the district’s refusal

to allow the student to attend classes part-time violated her rights under the free

exercise clause. Id. at 696-97. W e concluded that the school district’s policy

against part-time attendance was a neutral law of general applicability:

      On its face, the policy enacted by the school board in this case is
      neutral and of general application – it applies to all persons who
      might wish to attend public school on a part-time basis, and prohibits
      such part-time attendance (with certain specific exceptions, such as
      fifth-year seniors and special-education students). It applies to
      students who are home-schooled for secular reasons as well as those
      home-schooled for religious reasons, and it applies to students
      attending private schools whether or not those private schools are
      religious or secular in orientation.

Id. at 698 (emphasis added). W e also held that the school district’s part-time

attendance policy did not constitute a suspect system of individualized

exceptions:

      The school board’s policy in this case does not establish a system of
      individualized exceptions that give rise to the application of a
      subjective test. Instead, the only recognized exceptions to the
      full-time-attendance requirement are strict categories of students, all
      of whom have one characteristic in common – the state of Oklahoma
      recognizes them as students for purposes of calculating the amount of
      financial aid to provide to the school district. Plaintiffs, and all other
      home-schoolers (religious or secular) who do not meet that
      requirement, are ineligible for the exception. As we discussed above,
      there is no evidence that the exception is in any way based on
      religious categorization or discrimination.

Id. at 701 (emphases added).

      The district court also relied on M essiah Baptist Church v. County of

                                           -14-
Jefferson, 859 F.2d 820 (10th Cir. 1988). In that case, we considered a free

exercise challenge to a county’s denial of a permit which would have allowed the

M essiah Baptist Church to build a church in an agricultural (A-2) zone. Id. at

821-23. In holding that the denial of the permit did not violate the Church’s right

to free exercise, we said:

      the record in our case discloses no evidence that the construction of a
      house of worship on the property in the A-2 zoning district is
      integrally related to underlying religious beliefs of the Church . . . .
      W hat is important is that the record contains no evidence that
      building a church or building a church on the particular site is
      intimately related to the religious tenets of the church. At most, the
      record discloses the Church’s preference is to construct its house of
      worship upon its land.

Id. at 824-25 (emphasis added). W e concluded with the unequivocal declaration

that “[a] church has no constitutional right to be free from reasonable zoning

regulations nor does a church have a constitutional right to build its house of

worship where it pleases.” Id. at 826. It was of no consequence that the zoning

regulations at issue had the incidental effect of making the church’s exercise of

religion more expensive because it was compelled to build elsewhere in the

county. Id. at 825.

      In a case particularly apposite to our analysis here, we held that a “rule that

is discriminatorily motivated and applied is not a neutral rule of general

applicability.” Axson-Flynn, 356 F.3d at 1294. In Axson-Flynn, a M ormon

student enrolled in a state university’s actor training program brought a § 1983



                                         -15-
suit alleging that her free speech and free exercise rights were violated when she

was required to utter certain offensive words while performing a script, in direct

contravention to her religious beliefs. Id. at 1280-81. W e reversed the district

court’s summary judgment in favor of the university, holding there was a genuine

issue of material fact as to whether the script adherence requirement violated the

student’s free exercise rights. Id. at 1299. Importantly, the plaintiff proffered

evidence that the script adherence rule was applied to her due to “anti-M ormon”

sentiment. Id. at 1298-99. For instance, while she was required to adhere strictly

to the script, a Jewish student had received permission to miss certain class

exercises for religious reasons without suffering adverse consequences. Id. at

1298. In fact, the university sometimes granted the plaintiff herself an exemption

from the script adherence requirement. Id. at 1299. This evidence raised a

material fact issue as to whether the university deployed “a pattern of ad hoc

discretionary decisions” amounting to a “system of individualized exemptions.”

See id.

      The cumulative teachings of Smith, City of Hialeah, Swanson, M essiah

Baptist, and Axson-Flynn support the conclusion that the City’s zoning code does

not amount to a system of individualized exemptions triggering strict scrutiny.

First, and in stark contrast with City of Hialeah, there is no evidence in this case

suggesting the ordinance was passed due to religious animus. See 508 U.S. at 524

(determining that city’s asserted interests against cruelty to animals and in

                                         -16-
promoting public health “were pursued only with respect to conduct motivated by

religious beliefs”). In City of Hialeah, the Santerians’ provision of myriad facts

demonstrating that the ordinance at issue specifically and purposely targeted

Santeria animal sacrifice prompted the Court to apply strict scrutiny. Id. at 534-

38. Grace United has not made a similar showing here. Indeed, the record is

devoid of any indicia that the City enacted the LR-1 zoning regulations with the

purpose of restricting or suppressing the free exercise of any religion or religious

group, let alone the M ethodist Church. The stated objectives of the City’s zoning

ordinance are, inter alia, (1) to promote the health, safety, and general welfare of

the citizens of Cheyenne and Laramie county; (2) to lessen congestion in the

streets; (3) to create an attractive living and working environment; (4) to prevent

the overcrow ding of land; and (5) to facilitate provisions for transportation, water,

sewage, schools, parks, and other public requirements. See Cheyenne City Code

§ 17.04.010. Grace United failed to proffer any evidence suggesting that the

object and purpose of the zoning regulations are anything other than those

expressly stated therein.

      Second, and inconsistent with the requirements of Axson-Flynn, Grace

United has not pointed to any evidence to support its conclusory allegation that

the City specifically targeted religious groups or the M ethodist denomination in

its enforcement of the ordinance in this case. The Church does not suggest the

Board of Adjustment made any statements amounting to anti-religious or anti-

                                         -17-
M ethodist sentiment, or allowed some groups to operate daycare centers in LR-1

zones while denying the Church the same opportunity. In fact, the Board claims

it did not have the “authority or discretion” to permit anyone to operate a daycare

center in a residential zone. Aplt. App., vol. VI at 2527. Grace United makes no

attempt to controvert this contention. M oreover, the LR-1 zoning ordinance on its

face supports the Board’s conclusion that it has no authority to grant a variance

for purposes of operating a daycare center in a residential zone. See Cheyenne

City Code § 17.36.010-0.20; see also Aplt. App., vol. VI at 2520 (Board of

Adjustment Agenda noting zoning ordinance § 20.010(34)(c) defines daycare

center as a “business for profit or otherw ise, where twelve or more children are

cared for on a regular basis”). The Board’s mandatory denial of the Church’s

variance in this case is thus very different from the government employee’s

discretionary denial of M s. Sherbert’s unemployment benefits in Sherbert, 374

U.S. at 399-402, or the university’s allegedly ad hoc and discretionarily enforced

script adherence requirement in Axson-Flynn, 356 F.3d at 1298-99.

      Nor is this a case where the City, by virtue of its zoning laws, “devalues

religious reasons for [operating a daycare center] by judging them to be of lesser

import than nonreligious reasons.” City of Hialeah, 508 U.S. at 537-38; com pare

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359,

364-66 (3rd Cir. 1999) (law not generally applicable w here, in contravention to

general prohibition of facial hair, police officers allowed to grow beards for

                                         -18-
medical reasons but denied same exception for religious reasons), with First

Assembly of God of Naples, 20 F.3d at 423 (zoning ordinance regulating homeless

shelter location and administration generally applicable w here applied “to all

group homes . . . regardless of their ownership or affiliation.”) In the present

case, all daycare centers are prohibited from the residential zone where the

Church resides. There is no evidence that secular daycare centers have been

permitted to operate regardless of the zoning ordinance, while religious

organizations like the Church have been denied such an exception. Hence, this is

not a controversy in which the City made a “value judgment in favor of secular

motivations, but not religious motivations . . . .” Fraternal Order of Police

Newark Lodge No. 12, 170 F.3d at 365.

      W hile it is true that the B oard held a hearing to evaluate the Church’s

daycare request, we explained in Axson-Flynn:

      W hile of course it takes some degree of individualized inquiry to
      determine whether a person is eligible for even a strictly defined
      exemption, that kind of limited yes-or-no inquiry is qualitatively
      different from the kind of case-by-case system envisioned by the
      Smith Court in its discussion of Sherbert and related cases.

Id. at 1298. Thus, the fact that the Board decided to hold a hearing to determine

whether the Church’s use fell into an objective exception category does not lead

us automatically to conclude the Board was engaged in a system of subjective

individualized assessments. Indeed, we held in Swanson that a regulation

containing broad, objective exceptions does not establish a subjective system of

                                         -19-
individualized considerations. 135 F.3d at 701. The same logic applies here.

Although the City of Cheyenne’s zoning ordinance allows for limited objective

exceptions in the LR-1 zone (such as churches, schools, and other similar uses)

the regulation bars any organization or individual from operating a daycare center

in this residential zone, for either secular or religious reasons. The City has not

departed from that policy.

      Finally, we are not persuaded by Grace U nited’s assertion that the B oard’s

denial of a zoning variance for its proposed daycare operation constitutes more

than an incidental burden on religious conduct. As we made clear in M essiah

Baptist Church, while Grace United has a right to operate a daycare in Cheyenne,

it has no right to build its daycare exactly where it pleases. 859 F.2d at 826.

“[T]he record contains no evidence that building a [daycare center] or building a

[daycare center] on the particular site is intimately related to the religious tenets

of” Grace United. Id. at 824-25. In fact, as the district court correctly observed,

      Grace United could operate its religious education program in
      another area of Cheyenne that is properly zoned for such an
      operation. Or, Grace United could operate its religious education
      program in its present building, where it has Sunday school facilities,
      but not upon such a grandiose scale as the day care center it now
      wishes to construct. If from its present Sunday school of twelve to
      twenty there had been such great growth and expansion that it was
      necessary to expand the school to one hundred, then one might not
      doubt the bona fides of Grace United’s church . . . .

Grace United M ethodist Church, 235 F. Supp. 2d at 1201.

      In sum, there was no evidence that the Board ever interpreted the exempt

                                          -20-
categories to include certain daycare operations and not others, or that the

ordinance was enacted based on religious animus. The fact that the Board

consistently concluded it was w ithout discretion to grant variances for daycare

facilities in LR-1 zones defeats the argument that it deployed a system of

subjective considerations running afoul of the free exercise clause. The First

Amendment simply does not entitle the Church to special treatment so that it may

operate a daycare exactly where it pleases while no one else can do the same. See

Swanson, 135 F.3d at 702 (“Nothing in the Free Exercise Clause requires that

such special treatment be provided.”). Thus, even viewing the evidence in the

light most favorable to Grace United, we simply cannot conclude the City was

engaging in a pattern of ad hoc discretionary decisionmaking amounting to a

system of individual assessments that would trigger strict scrutiny. W e hold that

Cheyenne’s zoning ordinance constitutes a neutral policy of general applicability

which does not offend free exercise principles.



                              Hybrid Rights Exception

      Grace United also argues that its claim is not governed by Smith’s rational

basis exception to general strict scrutiny review of free exercise claims because it

is a “hybrid” of both free exercise rights and other constitutionally protected

rights. The City contends to the contrary that although the Church has alleged

numerous constitutional claims in addition to a free exercise challenge, it has

                                         -21-
failed to establish a “colorable claim” of a companion constitutional violation as

required by Swanson and Axson-Flynn. In the alternative, the City maintains that

the parameters of the “hybrid rights” doctrine were not clearly established at the

time the City acted in this case, and it is therefore entitled to qualified immunity

with respect to any hybrid claim.

      In support of its core holding that neutral rules of general applicability

normally do not raise free exercise concerns, the Court in Smith attempted to

harmonize free exercise jurisprudence by distinguishing Smith from precedent.

According to the Court, “[t]he only decisions in w hich we have held that the First

Amendment bars application of a neutral, generally applicable law to religiously

motivated action have involved not the Free Exercise Clause alone, but the Free

Exercise Clause in conjunction with other constitutional protections.” 494 U.S. at

881. Smith thus carved out an exception for “hybrid rights” claims, holding that a

party could establish a violation of the free exercise clause even in the case of a

neutral law of general applicability by showing that the challenged governmental

action compromised both the right to free exercise of religion and an independent

constitutional right. Id.

      The hybrid rights doctrine is controversial. It has been characterized as

mere dicta not binding on lower courts, Knight v. Conn. Dep’t of Pub. Health,

275 F.3d 156, 167 (2d Cir. 2001); criticized as illogical, Kissinger v. Bd. of Trs.




                                         -22-
of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993); and dismissed as untenable. 2

Courts are also divided on the strength of the independent constitutional right

claim that is required to assert a cognizable hybrid rights claim, with a number of

courts, including this circuit, expressing the view that a litigant is required to

assert at least a “colorable” claim to an independent constitutional right to survive

summary judgment. Swanson, 135 F.3d at 700; Axson-Flynn, 356 F.3d at 1295.

      In Axson-Flynn, we held that we would “only apply the hybrid-rights

exception to Smith where the plaintiff establishes a ‘fair probability, or a

likelihood,’ of success on the companion claim.” 356 F.3d at 1295. W e

emphasized that “the Smith court itself did not have an expansive standard in

mind for a separate hybrid-rights cause of action or it would have found a hybrid-

rights claim on the facts before it.” Id. at 1296 (citing M ichael W . M cConnell,

Free Exercise Revisionism and the Smith Decision, 57 U. C HI . L. R EV . 1109, 1122

(1990)). As Axson-Flynn teaches, the “colorable” inquiry is “fact-driven and

must be used to examine hybrid rights on a case-by-case basis.” Id. at 1297. A s

      2
        See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 567 (1993) (Souter, J., concurring) (“And the distinction Smith draws strikes
me as ultimately untenable. If a hybrid claim is simply one in which another
constitutional right is implicated, then the hybrid exception would probably be so
vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover
the situation exemplified by Smith, since free speech and associational rights are
certainly implicated in the peyote ritual. But if a hybrid claim is one in which a
litigant would actually obtain an exemption from a formally neutral, generally
applicable law under another constitutional provision, then there would have been
no reason for the Court in what Smith calls the hybrid cases to have mentioned the
Free Exercise Clause at all.”).

                                         -23-
explained below, while G race United alleges several constitutional violations, it

has not presented a colorable independent constitutional claim. 3



Freedom of Speech and Association

      Grace United claims that its speech and associational rights were violated

by the City’s denial of the variance to operate the proposed daycare center

because the Church is now prohibited from gathering together children to teach its

message. The district court dismissed these claims because in its view the C ity’s

land use regulations were unrelated to expression and there was no evidence

presented that the zoning regulations affected the ability of the Church members

to speak, assemble, or associate with one another. W e agree.



      3
         Even assuming the Church could establish a likelihood of success on any
of its constitutional claims, the City would be entitled to qualified immunity on
any hybrid rights claim. This is so because even “if a violation could be made out
on a favorable view of the parties’ submissions, the next, sequential step is to ask
whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201
(2001). “The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer [in the
defendant’s position] that his conduct was unlawful in the situation he
confronted.” Id. at 202. In Axson-Flynn, we expressly held that the hybrid rights
exception to Smith’s rational basis review was not clearly established prior to the
Axson-Flynn decision in 2004. Axson-Flynn v. Johnson, 356 F.3d 1277, 1301
(10th Cir. 2004). Any defendant, therefore, whose challenged actions occurred
prior to issuance of that opinion was entitled to qualified immunity. Id. Thus,
regardless of w hether Grace United has a fair probability or likelihood of success
on any of its independent constitutional claims, the City is entitled to qualified
immunity on the Church’s hybrid rights claim because the parameters of the
doctrine were not clearly established at the time of the City’s actions at issue in
this litigation.

                                        -24-
      The First Amendment prohibits government decision makers from

“abridging the freedom of speech, . . . or the right of the people peaceably to

assemble.” U.S. C ONST . amend. I. “Content-based restrictions on speech, those

which suppress, disadvantage, or impose differential burdens upon speech

because of its content are subject to the most exacting scrutiny,” Z.J. Gifts D-2,

L.L.C. v. City of Aurora, 136 F.3d 683, 686 (10th Cir. 1998) (internal citations

and quotations omitted), while content neutral regulations that only incidentally

burden speech are subject to intermediate scrutiny. See Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 293 (1984); United States v. O’Brien, 391

U.S. 367, 377 (1968).

      As explained above, the City’s zoning ordinance is neutral and generally

applicable, placing Grace United on an equal footing with other religious and

non-religious entities seeking to build and operate a daycare center in Cheyenne.

It is undisputed that the ordinance does not regulate any form of speech on its

face. M oreover, no evidence was presented indicating that the ordinance was

passed for the purpose of curtailing or controlling the content of expression. A s

such, the ordinance is content neutral. Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989) (regulation which “serves purposes unrelated to the content of

expression” is considered neutral “even if it has an incidental effect on some

speakers or messages but not others”); see also Gascoe, Ltd. v. Newtown

Township, 699 F. Supp. 1092, 1095 (E.D. Pa. 1988) (“municipality’s right to use

                                         -25-
its zoning power in the public interest is perhaps the paradigm of [a content

neutral] restriction”). Because the challenged zoning ordinance is content neutral,

it survives intermediate scrutiny so long as the City can establish that the

regulation “advances important governmental interests unrelated to the

suppression of free speech and does not burden substantially more speech than

necessary to further those interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S.

180, 189 (1997) (citing O’Brien, 391 U.S. at 377); Cmty. for Creative

Non-Violence, 468 U.S. at 293.

      There is no question that Cheyenne has a substantial interest in regulating

the use of its land and that its zoning regulations promote that interest. City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986) (asserting that “a city’s

“interest in attempting to preserve the quality of urban life is one that must be

accorded high respect,” quoting Young v. Am. M ini Theatres, Inc., 427 U.S. 50,

71 (1976) (plurality opinion)). M oreover, the zoning ordinance does not burden

any more speech than necessary to further those substantial interests. Not only

may Grace United freely disseminate its religious message in the LR-1 zone, but

it may disseminate religious speech in any zone in the City. The Church is

entitled to operate its daycare center in any one of Cheyenne’s 28 zones that is

properly zoned for such a facility. Aple. Br. at 17. By invoking the special

permit process, Grace U nited could even attempt to alter the Church property’s

zone designation to one that permits the operation of daycare facilities. The


                                         -26-
Church made no attempt to take advantage of the established procedures available

to special permit applicants. In sum, because the City has an important

governmental interest in regulating land use, and its zoning regulations are

unrelated to the suppression of speech and do not burden any more speech than

necessary, the challenged ordinance survives intermediate scrutiny.

      In addition to freedom of speech, the First A mendment also implicitly

protects the corresponding freedom to expressive association. Roberts v. United

States Jaycees, 468 U.S. 609, 622 (1984) (“we have long understood as implicit in

the right to engage in activities protected by the First A mendment a

corresponding right to associate with others in pursuit of a wide variety of

political, social, economic, educational, religious, and cultural ends”); Citizens

Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981) (emphasizing

“the importance of freedom of association in guaranteeing the right of people to

make their voices heard on public issues”). The First A mendment protects

associational and assembly rights in two distinct ways:

      First, the Court has held that the Constitution protects against
      unjustified government interference with an individual’s choice to
      enter into and maintain certain intimate or private relationships.
      Second, the Court has upheld the freedom of individuals to associate
      for the purpose of engaging in protected speech or religious
      activities.

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987).

“Of course, the right of association is no more absolute than the right of free



                                         -27-
speech or any other right; consequently there may be countervailing principles

that prevail over the right of association.” Walker v. City of Kansas City, 911

F.2d 80, 89 n.11 (8th Cir. 1990).

      As previously explained, Cheyenne’s zoning ordinance is content neutral

and the C hurch provided no evidence that the challenged regulations were

motivated by a desire to curtail protected speech or associational rights. Rather,

the evidence on the record suggests that the ordinance was passed for the purpose

of regulating traffic, noise and pollution in a residential zone. The land use laws

do not interfere with the congregation’s right to speak openly and freely or

associate with one another. Even in the context of the proposed daycare center,

the ordinance only interferes with the congregation’s ability to conduct that

particular operation at a specific location, and, as previously stated, a “church has

no constitutional right to be free from reasonable zoning regulations nor does a

church have a constitutional right to build its house of worship where it pleases.”

M essiah Baptist Church, 859 F.2d at 826. The City’s zoning regulations are

unrelated to the suppression of speech or assembly and do not burden any more

speech or associational rights than necessary to further the City’s substantial

interest in regulating traffic, noise and pollution in a residential zone. Therefore,

the fact that Grace United must comply with the City’s zoning regulations does

not violate its rights to free speech or association.




                                          -28-
Due Process

      Grace United contends the City’s zoning ordinance violates its right to due

process because the regulation is arbitrary and unreasonable. It argues that there

is no basis for the exclusion of religious uses from low density residential

neighborhoods, particularly when schools are permitted in such neighborhoods.

The district court granted summary judgment for the City on Grace United’s due

process claim.

      In M essiah Baptist Church, 859 F.2d at 822, we articulated the “test for

measuring the constitutionality of a zoning ordinance” under the D ue Process

Clause:

      [B]efore a zoning ordinance can be declared unconstitutional on due
      process grounds, the provisions must be clearly arbitrary and
      unreasonable, having no substantial relation to the public health,
      safety, morals, or general welfare . . . . If the validity of the land
      classification is “fairly debatable,” the legislative judgm ent must
      control.

Id. (citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 395 (1926))

(internal citations omitted). As we have already indicated, the ordinance at issue

here certainly has a “substantial relation to the public health, safety . . . or general

welfare” of Cheyenne. Id. W e simply cannot conclude that the Board’s refusal to

grant a variance in a low-density residential zone for a daycare center capable of

accommodating one hundred children, eighteen hours a day, seven days a week, is

clearly arbitrary and unreasonable. Even “if the validity of the land classification



                                          -29-
is ‘fairly debatable,’ the legislative judgment [of the City] must control.” Id.



Equal Protection

      Grace U nited also maintains the district court erred in ruling that the C ity’s

ordinance does not violate the equal protection clause. According to the Church,

the zoning regulation treats Grace United’s proposed land use differently and

more onerously than other religious and secular uses of land in violation of the

Fourteenth Amendment. The City responds that Grace United’s equal protection

claim was properly dismissed because the Church failed to proffer any evidence

of disparate treatment.

      The equal protection clause provides that “[n]o state shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. C ONST .

amend. XIV, § 1. Equal protection “is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). Although Grace United asserts that it is treated

differently than others, it has not provided even one example of such disparate

treatment. In any event, because the Church does not contend it is either a

member of a suspect class or was denied a fundamental right, the City’s zoning

ordinance need only be rationally related to a legitimate government purpose to

pass muster under the equal protection clause. Save Palisade FruitLands v. Todd,

279 F.3d 1204, 1213 (10th Cir. 2002).


                                         -30-
      There can be little doubt that the City’s zoning ordinance is rationally

related to a legitimate government purpose: the promotion of public health,

safety, and general welfare of the citizens of Cheyenne via the control of traffic,

noise, and pollution. As articulated by the district court, “[m]unicipal zoning has

been a common and accepted exercise of the police power to protect city residents

from the effects of urbanization, overcrowding, and encroachment of commercial

business for over three-quarters of a century.” Grace United M ethodist Church,

235 F. Supp. 2d at 1207 (citing Village of Euclid, 272 U.S. 365). The City has

allowed Grace United to operate a M ethodist church in a residential zone without

interference since 1956. The Church is not seeking similar treatment in its

request to operate a large commercial daycare center at that location; rather, it is

seeking preferential treatment at the expense of the other landowners in the LR-1

zone. W e therefore easily agree with the district court that Grace United failed to

state a cognizable equal protection claim.



                                          III

               Jury Instructions on Grace United’s R LUIPA Claim

      Grace U nited argued to the jury that the C ity’s refusal to grant the Church’s

requested variance for the daycare center violated RLUIPA. Relying exclusively

on its finding that the proposed daycare operation was not a sincere exercise of

religious belief, the jury ruled in favor of the City. Grace United maintains the


                                         -31-
jury wrongly reached that conclusion because the district court’s jury instructions

detailing the requirements of the RLUIPA claim were erroneous as a matter of

law .

        W e review de novo whether, as a whole, the district court’s jury

instructions correctly stated the governing law and provided the jury with an

ample understanding of the issues and applicable standards. See Reed v. Landstar

Ligon, Inc., 314 F.3d 447, 450 (10th Cir. 2002); M orrison Knudsen Corp. v.

Fireman’s Fund Ins. Co., 175 F.3d 1221, 1235 (10th Cir. 1999) (“Our concern is

to ensure that our review does not leave us with substantial doubt whether the

instructions, considered as a whole, properly guided the jury in its deliberations.”

(internal quotation omitted)). “Even if a review of the instructions, read in

isolation from the rest of the trial, did leave this court with a substantial doubt, it

would then be necessary to determine whether any error prejudiced” Grace

United. Id. at 1236; see also Neder v. United States, 527 U.S. 1, 15-16 (1999)

(applying harmless error test to jury instructions); Lusby v. T.G. & Y. Stores, Inc.,

796 F.2d 1307, 1310 (10th Cir. 1986) (“Harmless error analysis normally applies

in civil cases . . . and it specifically applies to faulty jury instructions.” (citing 28

U.S.C. § 2111; F ED . R. C IV . P. 61)).

        Jury Instruction 19 addressed RLUIPA ’s requirement that the Church prove

an exercise of its sincerely held religious belief was “substantially burdened” by

the City’s denial of the requested variance. Aple. Supp. App. at 83. The


                                           -32-
instruction informed the jury that Grace United could not base its claim on

religious activities unless those activities were “fundamental” to its religion. Id.

Specifically, the court instructed the jury that protected religious exercise under

RLUIPA was restricted to “conduct or expression that manifests some tenet of the

institution’s belief” and curtails its “ability to express adherence to its faith,” or

denies it “reasonable opportunities to engage in those activities that are

fundamental to the institution’s religion.” 4 Aplt. App., vol. V at 2262 (emphasis

added). Grace United objected to Instruction 19 and asked the court to substitute

the word “important” for “fundamental,” which the court refused to do. Id. at

2151-52. The Church contends Instruction 19 erroneously overstated its burden

because RLUIPA does not require the religious activity that is substantially

burdened by the land use regulation at issue to be “fundamental.”

      The City, on the other hand, maintains that Instruction 19 correctly

articulates the constitutional substantial burden test. It further asserts that even


      4
       Jury Instruction 19 read as follow s:
             A government regulation “substantially burdens” the exercise
      of religion if the regulation: (1) significantly inhibits or constrains
      conduct or expression that manifests some tenet of the institutions
      belief; (2) meaningfully curtails an institution’s ability to express
      adherence to its faith; or (3) denies an institution reasonable
      opportunities to engage in those activities that are fundamental to the
      institution’s religion.
             Thus, for a burden on religion to be “substantial,” the
      government regulation must compel action or inaction with respect to
      the sincerely held belief; mere inconvenience to the religious
      institution is insufficient.
Aple. Supp. App. at 83 (emphasis added).

                                           -33-
assuming Instruction 19 was erroneous, it was harmless because it was but one of

several instructions setting forth the elements that Grace United was obligated to

prove under RLUIPA , and the other instructions did not include the extra and

allegedly erroneous requirement that the intended activity be fundamental to

religious exercise.

      RLUIPA sets up a strict scrutiny standard for the implementation of land

use regulations. In essence, a land use regulation cannot “substantially burden”

“religious exercise” unless the government can show the regulation furthers a

compelling governmental interest and is the least restrictive means of furthering

that interest. 42 U.S.C. § 2000cc-1(a). 5 The statute also contains a


      5
       In relevant part, this provision reads as follows:
      § 2000cc. Protection of land use as religious exercise.
          (a) Substantial burdens.
              (1) General rule. N o government shall impose or implement a
              land use regulation in a manner that imposes a substantial
              burden on the religious exercise of a person, including a
              religious assembly or institution, unless the government
              demonstrates that imposition of the burden on that person,
              assembly, or institution--
                  (A) is in furtherance of a compelling governmental interest;
                  and
                  (B) is the least restrictive means of furthering that
                  compelling governmental interest.
              (2) Scope of application. This subsection applies in any case in
              which . . .
                  (C) the substantial burden is imposed in the
                  implementation of a land use regulation or system of
                  land use regulations, under which a government
                  makes, or has in place formal or informal procedures
                  or practices that permit the government to make,
                                                                        (continued...)

                                        -34-
nondiscrimination provision, which prohibits land use regulations that either

disfavor religious uses relative to nonreligious uses or unreasonably exclude

religious uses from a particular jurisdiction. Id. § 2000cc(b). 6 Although RLU IPA

provides a very broad definition of “religious exercise, ” id. § 2000cc-5(7)(A)

(religious exercise “includes any exercise of religion, whether or not compelled

by, or central to, a system of religious belief”), it fails to define “substantial

burden.” Nevertheless, RLUIPA ’s legislative history reveals that “substantial

burden” is to be interpreted by reference to the Religious Freedom Restoration

Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq., and First Amendment




      5
      (...continued)
                individualized assessents of the proposed uses for the
                property involved.
42 U.S.C. § 2000cc(a).
      6

       (b) D iscrimination and exclusion.
          (1) Equal terms. 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.
          (2) Nondiscrimination. No government shall impose or
          implement a land use regulation that discriminates against any
          assembly or institution on the basis of religion or religious
          denomination.
          (3) Exclusions and limits. No government shall impose or
          implement a land use regulation that--
              (A) totally excludes religious assemblies from a
              jurisdiction; or
              (B) unreasonably limits religious assemblies,
              institutions, or structures within a jurisdiction.
Id. § 2000cc(b).

                                          -35-
jurisprudence. See 146 C ONG . R EC . 7774-01, 7776 (“The term ‘substantial

burden’ as used in this Act is not intended to be given any broader interpretation

than the Supreme Court’s articulation of the concept of substantial burden or

religious exercise.”); see also Civil Liberties for Urban Believers, 342 F.3d at

760-61.

      The City relies on Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir. 1996), to

illustrate that Instruction 19 represents a correct statement of the substantial

burden test. The question in Thiry was whether the plaintiffs’ rights under RFRA

would be violated if a parcel of their property containing the grave of their

stillborn daughter was taken for public highway purposes, necessitating the

relocation of the gravesite. Id. at 1493. Concerning the definition of substantial

burden, we noted that Lyng v. Nw. Indian Cem etery Protective Ass’n, 485 U.S.

439 (1988), w as controlling. Thiry, 78 F.3d at 1495. The Supreme Court stated

there that the incidental effects of otherwise lawful government programs “which

may make it more difficult to practice certain religions but which have no

tendency to coerce individuals into acting contrary to their religious beliefs” do

not constitute substantial burdens on the exercise of religion. Id. (quoting Lyng,

485 U.S. at 450-51).

      W e acknowledged in Thiry our statement in Werner v. M cCotter, 49 F.3d

1476 (10th Cir. 1995),

      that to exceed RFRA’s “substantial burden” threshold, government
      regulation – “must significantly inhibit or constrain conduct or

                                         -36-
      expression that manifests some central tenet of . . . [an individual’s]
      beliefs; must meaningfully curtail [an individual’s] ability to express
      adherence to his or her faith; or must deny [an individual] reasonable
      opportunities to engage in those activities that are fundamental to [an
      individual’s] religion.”

Thiry, 78 F.3d at 1495 (quoting Werner, 49 F.3d at 1480) (emphasis added)).

This quotation from Werner mirrors the definition of substantial burden adopted

by the district court in Instruction 19. Recognizing the tension between the

standard articulated in Lyng and the test laid out in Werner, we noted that

Werner’s status as a prisoner case “may explain why [the court] failed entirely to

address the . . . ‘substantial burden’ standard in Lyng,” but we also concluded

that “[t]he reasoning of Werner . . . is too broad to permit a prisoner/nonprisoner

distinction.” Id. W e nevertheless found it unnecessary to reconcile Werner’s

language with Lyng because we agreed with the district court that the Thirys did

not establish a substantial burden under any plausible reading of the statute. Id.

Thus, while w e acknowledged the different and conflicting language used to

define substantial burden in Lyng and Werner, we neither endorsed the Werner

standard nor resolved the issue in Thiry.

      Grace United, relying on our decision in Kikumura v. Hurley, 242 F.3d 950,

960-61 (10th Cir. 2001), contends the definition of religious exercise was

deliberately relaxed in RLUIPA and that a limitation of religious exercise to

“fundamental” activities does not apply to RLUIPA claims. Kikum ura involved a

cause of action brought by a federal prisoner seeking injunctive relief on the basis


                                         -37-
that prison officials had violated his First and Fifth Amendment rights as well as

RFRA by denying him pastoral visits from his Christian minister. Id. at 953-55.

In ruling that the pastoral visits requested by the prisoner were protected

activities under RFRA, we stated:

      The term “exercise of religion” was previously defined in RFRA as
      “the exercise of religion under the First Amendment to the
      Constitution.” See 42 U.S.C. § 2000bb-2(4) (1999). RLUIPA
      amended RFRA, however, so that “exercise of religion” now means
      “religious exercise, as defined in [42 U.S.C. §] 2000cc-5.” Id. §
      2000bb-2(4). “[R]eligious exercise” is defined in 42 U.S.C. §
      2000cc-5(7)(A) to include “any exercise of religion, whether or not
      compelled by, or central to, a system of religious belief.” Plaintiff
      does not claim the requested pastoral visits w ere required by his
      religious beliefs. Under the definition of “religious exercise” in 42
      U.S.C. § 2000cc-5(7)(A), however, a religious exercise need not be
      mandatory for it to be protected under RFRA. Plaintiff maintains
      that his desire to study Christianity and practice Christian prayer
      necessitated visits by Christian pastors, and that Reverend Rickard
      was particularly appropriate because of his experience as a Christian
      missionary in Japan, Plaintiff’s native country. Pastoral visits of this
      nature are protected activities under RFRA, particularly in light of
      the new definition of “exercise of religion” adopted in RLUIPA. See
      id. § 2000cc-5(7)(A).

Id. at 960-61 (emphasis added). In other words, whatever the substantial burden

test required prior to the passage of RLUIPA , the statute substantially modified

and relaxed the definition of “religious exercise.” As such, Instruction 19

improperly articulated the substantial burden test, regardless of w hat this court

said in Werner, and arguably in Thiry, by requiring the religious activities that

were substantially burdened to be “fundamental.” The district court’s decision to

modify the phrase “activities” with “fundamental” in the Jury Instruction 19 was


                                         -38-
therefore erroneous.

      The question remains whether the error was harmless. Our answer turns on

whether the district court’s erroneous jury instruction was prejudicial to Grace

United. Davey v. Lockheed M artin Corp., 301 F.3d 1204, 1212 (10th Cir. 2002)

(“[a]n error in jury instructions will mandate reversal of a judgment only if the

error is determined to have been prejudicial” (quotation omitted)). The City

contends that even if Instruction 19 erroneously defined the substantial burden




                                         -39-
test, any error was harmless because Instructions 17, 7 18, 8 and 20 9 provided an

accurate description of the law of RLUIPA for the jury and did not include the

extra (and erroneous) requirement that the activity at issue be fundamental to

religious exercise.

      W hile it is true that the district court correctly articulated the definition of

“religious exercise” in Instruction 17, a reasonable juror could have been misled



      7
       Instruction 17 read as follow s:
         The term “religious exercise” as used in the Religious Land Use and
         Institutionalized Persons A ct includes any exercise of religion,
         whether or not compelled by, or central to, a system of religious
         belief. 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.
Aple. Supp. App. at 81 (emphasis added).
      8
        Instruction 18 read as follow s:
           In order to prove the essential elements of Plaintiff’s claim under
           RLUIPA , the burden is on Plaintiff to establish by a preponderance
           of the evidence each of the following:
               First: The City of C heyenne’s land use regulation, or the Board
               of Adjustment’s application of that land use regulation,
               imposes a substantial burden on Grace United M ethodist
               Church’s exercise of religion;
               Second: Grace United M ethodist Church’s operation of the
               child care or day care center is [a] sincere exercise of religion;
               and
               Third: Grace United M ethodist Church is a religious assembly
               or institution.
Id. at 82.
      9
        Instruction 20 read as follow s:
           A religious belief is “sincere” if it is truly held and religious in
           nature.
Id. at 84.

                                          -40-
by the court’s erroneous articulation of the substantial burden test provided

moments later in Instruction 19. Nevertheless, we are convinced a reasonable

juror could not have been misled to Grace United’s detriment by Instruction 19

because the jury found that the Church failed to prove it was engaged in a sincere

exercise of religion. 10 As a consequence, the substantial burden issue became

irrelevant. Because the jury was never misled about the legal requirements for

finding a sincere religious belief, we conclude with confidence that Instruction

19’s error had no impact whatsoever on the outcome of the proceedings in the

district court. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998)

(“Evidence admitted in error can only be prejudicial if it can be reasonably

concluded that . . . without such evidence, there would have been a contrary

result.”). It necessarily follows that the erroroneous description of RLUIPA’s

substantial burden test in Instruction 19 was harmless as a matter of law.




      10
        After reading the jury instructions, the court addressed each section of the
special verdict form for the jury. Significantly, the first question the jury was
required to answer on the verdict form was whether Grace United had proven “by
a preponderance of the evidence that [its] proposed operation of the child care or
day care center is a sincere exercise of religion.” Aplt. App., vol. V at 2265. The
court instructed the jury that if they determined the answer to this first question
was no, “that would end the matter and [they should] just date and sign the
verdict.” Id. After deliberations, the jury did just that. Id. at 2275.

                                        -41-
                                        IV

                      Adm issibility of Bishop Brown’s Letter

      Subsequent to the B oard of A djustment’s decision to deny Grace U nited’s

request for a variance to operate the daycare center, the Church’s pastor, Jon

Laughlin, sent a letter to Bishop W arner Brown, the presiding Bishop over the

Rocky M ountain and Yellowstone Conferences of the United M ethodist Church.

Aplt. App., vol. II at 812-14. The letter and attached resolution from Grace

United detailed the history of the proposed daycare project and recounted the

proceedings at the variance hearing before the Board. Id. at 813. It also

requested “financial, legal and spiritual” assistance from the Bishop and the

Conference in pressing RLUIPA litigation. Id. at 814.

      Bishop Brown responded to Pastor Laughlin with a letter dated M ay 18,

2001. Id. at 815. In that correspondence, the B ishop opined that Grace U nited’s

proposed daycare center “seems to look more like a commercial venture and less

like a religious function, thereby justifying the government’s compelling interest

of limiting traffic, noise and congestion in a residential neighborhood.” Id. H e

also indicated that he was concerned about the dearth of facts demonstrating

religious discrimination:

      if the constitutionality of RLUIPA were to be tested, I would want
      the case to have facts which demonstrate more clearly that a church
      in the Conference was being discriminated against or excluded from
      a city. In this case, Grace is allowed to operate in the neighborhood,
      and even expend [sic] its sanctuary and children’s education wings.
      The only limitation on its request is the denial of a variance to

                                        -42-
      operate a daycare center, a more traditional commercial venture.

Id.

      During discovery, Grace United provided copies of the letter to the City

without any assertion of privilege. The City listed the letters as trial exhibits and

deposed Bishop Brown at his office in Denver, Colorado on M ay 13, 2003. Aplt.

App., vol. IV at 1799. During his deposition, Bishop Brown testified that his

M ay 18, 2001, letter to Pastor Laughlin accurately expressed the concerns he had

at the time he sent the letter. Id. at 1804. Bishop Brown further stated that he no

longer held those views of the proposed project and now considered the daycare

to be “an important ministry” of the M ethodist Church. Id. at 1806.

      Prior to trial, Grace United filed a motion in limine seeking to exclude the

Bishop’s letter. According to the Church, Bishop Brown was not a spokesman or

a representative of Grace United M ethodist Church and, as a result, the contents

of his letter could not be admitted as statements of a party opponent. The district

court disagreed and denied the Church’s motion to exclude based on its finding

that Bishop Brown was a “superintending authority” of Grace United. Id., vol. III

at 1118. The court held the letter admissible pursuant to the admission against

interest exception to the hearsay rule. 11 Both the City and Grace United listed


      11
        The City submits that the court decided to admit the Bishop’s letter
pursuant to Federal Rule of Evidence 804(b)(3). Aple. Br. at 36. The district
court admitted the letter as an “admission against interest,” without specifically
articulating which federal rule it w as implicating. Aplt. A pp., vol. III at 1118.
                                                                         (continued...)

                                         -43-
Bishop Brown as a witness in their final pretrial memoranda and the Church

called the Bishop in its case-in-chief by way of his videotaped deposition. Id.,

vol. IV at 1796-97. Grace United contends the district court’s admission of the

letter constitutes reversible error.

      Grace United contends Bishop Brown’s letter w as inadmissible and its

admission as evidence constitutes reversible error because the Bishop is not a

representative of the Church and his opinions in the letter were not rationally

based on his perceptions. W e review a district court’s decision to admit evidence

for abuse of discretion. United States v. Jenkins, 313 F.3d 549, 559 (10th Cir.


      11
         (...continued)
Unavailability of the declarant is a prerequisite to the exception from the hearsay
rule of an admission against interest, F ED . R. E VID . 804(a), and the parties
stipulated that Bishop Brown was physically “unavailable” to provide live
testimony during the jury trial. A declarant, however, is considered available for
purposes of the exception under Rule 804(b)(3) if the declarant’s deposition
testimony can be taken for use at trial. See F ED . R. E VID . 804(a)(5). Thus, a
deposed declarant such as Bishop Brown can never be “unavailable” for purposes
of an exception under Rule 804(b)(3). As a result, we assume here that the
district court actually relied on Rule 801(d)(2), which deems an admission by a
party-opponent to be nonhearsay. See, e.g., Big Apple BM W of N. Am., Inc. v.
BM W of N. Am., Inc., 974 F.2d 1358, 1374 (3d Cir. 1992) (noting Rule 801(d)(2)
“is designated as an admission against interest”); United States v. Johnson, 971
F.2d 562, 574 (10th Cir. 1992) (referring to Rule 801(d)(2) as an “admission
against interest”); see also D AVID F. B INDER , H EARSAY H ANDBOOK § 35-1, at 35-
6 (4th ed. 2001) (“An admission of a party-opponent is normally contrary to the
interest of the declarant, but there is no requirement that this be so.”); J OSEPH M .
M C L AUGHLIN ET AL , W EINSTEIN ’ S FEDERAL EVIDENCE § 801.30[1], at 801-48 (2d
ed. 2005) (party admissions under Rule 801(d)(2) may, but are not required to be,
against interest). In any event, we may affirm the district court on any basis
supported by the record. Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1165 (10th
Cir. 2004).


                                         -44-
2002). “[W]e will not disturb an evidentiary ruling absent a distinct showing that

it was based on a clearly erroneous finding of fact or an erroneous conclusion of

law or manifests a clear error in judgment.” Id. (citations omitted).

       Federal Rule of Evidence 801(d)(2) defines the admission by a party

opponent exclusion to the hearsay rule as follow s:

       The statement is offered against a party and is (A) the party’s own
       statement, in either an individual or a representative capacity or (B)
       a statement of which the party has manifested an adoption or belief
       in its truth, or (C) a statem ent by a person authorized by the party to
       make a statement concerning the subject, or (D) a statement by the
       party’s agent or servant concerning a matter within the scope of the
       agency or employment, made during the existence of the relationship,
       or (E) a statement by a coconspirator of a party during the course and
       in furtherance of the conspiracy.

F ED . R. E VID . 801(d)(2) (emphases added). Bishop Brown testified in his

deposition that as Bishop of the Rocky M ountain Conference, he is the “general

superintendent” with “assigned presidential responsibility over an episcopal area

where [he] serve[s] as the president of the corporation . . . at the annual

conference level.” Aplt. App., vol. IV at 1800. The “episcopal area” over which

Bishop Brown presides “includes the state of Utah, the state of Colorado, and the

eastern portion of the state of Wyoming.” Id. at 1800-01. W ith regard to his

relationship with Grace United, Bishop Brown testified in relevant part as

follow s:

       A: (Bishop Brown): As a bishop I assign the pastors and essentially
       am responsible for supervising their work within the terms of the
       church’s understanding. Each local church is given a certain degree
       of autonomy, but the annual conference becomes sort of the

                                         -45-
      beneficiary or the trust beneficiary. In the event a local church goes
      out of business, the property and assets of that local church would
      then revert to the annual conference on behalf of the whole.

      Q: (City’s attorney): Your relationship to the G race United M ethodist
      Church in Cheyenne is w hat?

      A: W ell, me personally?

      Q: Correct or the conference.

      A: The conference. Grace United M ethodist Church is a member of
      the United M ethodist Church and a member of the Rocky M ountain
      Conference. That means they get to elect laypersons to attend and
      are voting members of the Rocky M ountain Conference for policy
      making decisions. They – Rocky Mountain Conference through me,
      the bishop, assigns their pastor, and that pastor is a voting member
      of the Rocky Mountain Conference. Essentially Rocky M ountain
      Conference – traditionally it was the church for pastors, and it’s
      separate from – a pastor isn’t a member of a particular
      congregation, but they are a member of that entity, the annual
      conference. The local church as a part of its agreement to be in the
      faith covenant of being a United – faithful United M ethodist is to
      work cooperatively with other churches in ministry and outreach, and
      things like that. So they cooperate with other M ethodist churches.
      They’re supervised by me or the district superintendent I assign to
      supervise the work of the pastor and the church. They’re expected to
      follow our principles and ethics and legislative form at for doing their
      work.

Id. at 1801 (emphases added). In other words, in the United M ethodist Church,

bishops are administrative superintendents of the church. Id. Among their duties,

they are responsible for appointing clergy to serve local churches as pastor, for

performing ordinations, and for safeguarding the doctrine and discipline of the

Church. See id.

      To the extent that Bishop Brown has the ability to assign and remove local


                                         -46-
pastors at will within his conference and to supervise their work, he is necessarily

Pastor Laughlin’s manager or, as aptly depicted by the district court, Grace

United’s “superintendent.” Indeed, Bishop Brown testified that the Conference

provides G race United with financial support in general and, under his

supervision and direction, provided funds to the Church to wage the instant

lawsuit. Id. at 1804. M oreover, should Grace United go “out of business” due to

financial mismanagement or any other reason, the property and assets of the

Church would revert to the R ocky M ountain Conference and to Bishop Brow n’s

control. Id. at 1801. Based on this evidence, the district court’s finding that

Bishop Brown was a “superintending authority” and, as a result, a representative

of or a party authorized to speak for G race United, was not clearly erroneous.

Nor was the court’s decision to admit the Bishop’s letter under Rule 801(d)(2) an

abuse of discretion.

      Grace United also argues that Bishop Brown’s letter w as inadmissible

because his opinions in the letter were not rationally based on his perceptions. 12


      12
        Pursuant to Rule 701, a witness who is not an expert may offer opinion
testimony only when it is
      (a) rationally based on the perception of the witness, (b) helpful to a
      clear understanding of the witness’ testimony or the determination of
      a fact in issue, and (c) not based on scientific, technical, or other
      specialized knowledge within the scope of Rule 702.
Thus, Rule 701 permits the admission of lay opinion testimony provided that it
meets two criteria: a rational basis in perception and helpfulness. “The
perception requirement stems from F.R.E. 602 which requires a lay witness to
have first-hand knowledge of the events he is testifying about so as to present
                                                                         (continued...)

                                         -47-
W hile opinion testimony admitted pursuant to Rule 701 “requires a lay witness to

have first-hand knowledge of the events he is testifying about so as to present

only the most accurate information to the finder of fact,” United States v. Hoffner,

777 F.2d 1423, 1425 (10th Cir. 1985), an admission of a party opponent needs no

indicia of trustworthiness to be admitted. United States v. Pinalto, 771 F.2d 457,

459 (10th Cir. 1985) (“The district court erroneously viewed trustworthiness as a

separate requirement of admission under Section 801(d)(2)(A).”). Thus, as the

court said in Jewel v. CSX Transp., Inc., 135 F.3d 361, 365 (6th Cir. 1998), “[t]he

admissibility of statements of a party-opponent is grounded not in the presumed

trustworthiness of the statements, but on ‘a kind of estoppel or waiver theory, that

a party should be entitled to rely on his opponent’s statements.’” (quoting United

States v. DiDomenico, 78 F.3d 294, 303 (7th Cir. 1996)).

      W e have expressly held that an admission of a party opponent may be

introduced in evidence even though the declarant lacked personal knowledge of

the matter asserted. Smedra v. Stanek, 187 F.2d 892, 894 (10th Cir. 1951)

(stating that “[a]dmissions do not come in, on the ground that the party making

them, is speaking from his personal knowledge, but upon the ground that a party

will not make admissions against himself unless they are true” (quotation


      12
        (...continued)
only the most accurate information to the finder of fact.” United States v.
Hoffner, 777 F.2d 1423, 1425 (10th Cir. 1985).



                                        -48-
omitted)); accord Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 96 (3d

Cir. 1999) (“Admissions by a party-opponent need not be based on personal

knowledge to be admitted under Rule 801(d)(2).”); Union M ut. Life Ins. Co. v.

Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir. 1986). Quoting from the Notes of

Advisory Committee on the Proposed Rules, we provided in Pinalto the source

and explanation for the Rule 801(d)(2) exception from the personal knowledge

requirement:

      “Admissions by a party-opponent are excluded from the category of
      hearsay on the theory that their admissibility in evidence is the result
      of the adversary system rather than satisfaction of the conditions of
      the hearsay rule [Citations omitted]. No guarantee of trustworthiness
      is required in the case of an admission. The freedom w hich
      admissions have enjoyed from technical demands of searching for an
      assurance of trustworthiness in some against-interest circumstance,
      and from restrictive influences of the opinion rule and the rule
      requiring first-hand knowledge, when taken with the apparently
      prevalent satisfaction with the results, calls for a generous treatment
      of this avenue of admissibility.” [Emphasis supplied.]

771 F.2d at 459 (emphasis added). Thus, any contention that Bishop Brow n’s

letter was inadmissible under Rule 801(d)(2) because his opinions in the letter

were not rationally based on his perceptions lacks merit.

      In any event, Bishop Brown’s extensive experience with the United

M ethodist Church and its religious beliefs includes his service as an ordained

minister for thirty years, during which he occupied such diverse posts as local

pastor, district superintendent, and council director. A plt. A pp., vol. IV at 1801.

As previously explained, the Bishop currently serves in the elected position of


                                          -49-
presiding Bishop of a conference encompassing several states. Id. at 1800-02.

There is little doubt that his capacious employment with the M ethodist Church

has provided him myriad opportunities to observe firsthand the church’s policies

and practices with respect to its various religious-based projects. Consequently,

his opinion concerning the religious versus the more traditionally commercial

nature of the proposed daycare center likely was well within his own education,

observation, and recollection, and based on what he had perceived over time.

      It is also worth noting that Bishop Brown had the right, which he exercised

in his M ay 2003 deposition testimony, to contradict and explain the admissions he

made in the M ay 2001 letter. As the court noted in M urrey v. United States, 73

F.3d 1448 (7th Cir. 1996), “[p]eople usually don’t make damaging admissions

unless they are true. Usually, but not always. People sometimes do make

mistaken admissions, which is why an extrajudicial admission . . . is not

conclusive on the issue admitted. But it is evidence.” Id. at 1455. Grace United

itself called Bishop Brown via his deposition for the purpose of bolstering its

claim that the daycare center w as an important ministry of the M ethodist Church.

At the minimum, therefore, the City was entitled to impeach that testimony with

the Bishop’s prior inconsistent statements. It is also important to note the Bishop

testified that the opinions contained in his letter were accurate at the time the

letter was drafted. Aplt. App., vol. IV at 1804. Hence, the admission of the letter

was at most cumulative to the opinion testimony offered by Grace United. For


                                          -50-
the aforementioned reasons, we conclude the Bishop’s statements asserting that

the daycare center appeared to be more of a commercial venture and less of a

religious function were not inadmissible hearsay.

      Grace United further contends that if Bishop Brown is a representative of

and authorized to speak for the Church for purposes of Rule 801(d)(2), the

statements in his letter constitute protected w ork product. However, any work

product objection was waived by Grace United via production. See, e.g.,

Simmons, Inc. v. Bombardier, Inc., 221 F.R.D. 4, 8 (D.D.C. 2004) (“The

work-product privilege may be waived by the voluntary release of materials

otherw ise protected by it.”); see also Frontier Refining, Inc. v. Gorman-Rupp Co.,

Inc., 136 F.3d 695, 704 (10th Cir. 1998) (“[A ] litigant cannot use the w ork

product doctrine as both a sword and shield by selectively using the privileged

documents to prove a point but then invoking the privilege to prevent an opponent

from challenging the assertion.”). M oreover, work product protection only

applies to attorneys’ or legal representatives’ mental impressions, conclusions,

opinions, or legal theories authored in anticipation of litigation. F ED . R. C IV . P.

26(b)(3); Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); see also Resolution

Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995) (“The party asserting a

work product privilege as a bar to discovery must prove the doctrine is applicable.

. . . A mere allegation that the work product doctrine applies is insufficient.”).

The Bishop’s letter was drafted more than a year prior to the initiation of the


                                           -51-
instant litigation by an individual who insists that he had no role in the decision

to proceed with this litigation.

      On the other hand, we disagree with the C ity’s contention that the B ishop’s

opinions regarding what constitutes a compelling state interest under RLUIPA are

admissible under Rule 701. 13 It is uncontroverted that Bishop Brown has no legal

training or expertise. Consequentially, he is entirely unqualified to pontificate on

legal questions, and statements he made to that effect constitute irrelevant hearsay

and, thus, were inappropriately admitted into evidence. The district court’s

erroneous admission of the B ishop’s legal opinions, however, was harmless. A s

explained in the preceding section, the jury did not reach the question whether the

City’s purpose in enacting and enforcing the zoning ordinance constituted a

compelling state interest because it found that the proposed daycare center was

not a sincere exercise of religion. Since the jury never reached the issue on which

Bishop Brown opined, the error could not have altered the outcome of the

proceedings or otherw ise affected the substantial rights of Grace United. Frontier

Refining Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 705 (10th Cir. 1998)

(holding that trial court’s decision to admit evidence should only be overturned if

“it affected the substantial rights of the parties”).



                                           V


      13
           See infra note 11.

                                          -52-
           Adm issibility of Various Other Contested Evidentiary Item s

      Along with the Bishop Brown’s letter, the Church also objected to several

exhibits the district court deemed admissible, including (1) petitions allegedly

signed by persons claiming to be neighbors of Grace United and objecting to the

daycare center, aplt. app., vol. VI at 2546; (2) a staff report allegedly prepared by

employees of the City, id. at 2520; (3) the minutes from a neighborhood meeting

hosted by Grace United, id. at 2552; and (4) statements made opposing the

daycare center in community meetings, id., vol. V at 2030-32. Because the

RLUIPA claim raised issues concerning both the Church’s religious beliefs as

well as the City’s secular motives, the district court ruled that the above

enumerated exhibits were relevant and admissible. W hen the issue of whether to

grant a new trial “hinges on the admissibility of evidence,” we review the

“admission of the evidence for abuse of discretion.” M inshall v. M cGraw Hill

Broad. Co., Inc., 323 F.3d 1273, 1283 (10th Cir. 2003) (quoting Sanjuan, 160

F.3d at 1296).

      The City advances several theories to support the admission of these

documents. First, it contends the documents were relevant evidence of the

motives of the City in adopting and enforcing its zoning ordinance. It also

maintains that had the Church successfully established the City’s zoning

ordinance substantially infringed on its sincerely held religious beliefs, the

exhibits would have been probative as to whether the City had a compelling


                                         -53-
governmental interest in the enactment and enforcement of its land use

regulations. Finally, the City submits that the staff report, minutes, and petitions

were part of the official record of the City and, as such, fall into the business

records exceptions to the hearsay rule pursuant to Rule 803(8).

      W e need not address these contentions because even if the exhibits are

inadmissible, the district court’s decision to enter them into evidence was

harmless. The dispositive issue for the jury in this case w as w hether the daycare

center constituted a sincere exercise of the Church’s religious beliefs. Grace

United does not even allege that the documents at issue in any way undermined

its claim that the daycare operation was a sincere exercise of religion. Indeed, it

struggles to explain exactly how it was prejudiced by the introduction into

evidence of these particular exhibits. In a conclusory fashion, Grace United

alleges nothing more than the admission of these items “was clearly prejudicial,

[because they] portrayed Appellees in the ‘best light,’ and Grace United

M ethodist Church in the ‘worst light’ as going against the desires of the majority

of the neighbors.” Aplt. Rep. Br. at 29. As previously emphasized, even

evidence “admitted in error can only be prejudicial if it can be reasonably

concluded that . . . without such evidence, there would have been a contrary

result.” Sanjuan, 160 F.3d at 1296. Because Grace United has provided us w ith

no basis for reasonably concluding that the jury would have reached a contrary

result had the objected-to exhibits not been admitted by the district court, any


                                          -54-
error in admitting them was harmless.



                                          VI

      M ountview Park H om eowners’ Association and Restrictive Covenants



Rule 24(a)(2) Intervention

      Grace United contends that the district court erred in permitting M ountview

Homeowner’s Association to intervene and raise the applicability of the

restrictive covenants. Grace United does not claim the district court erred in its

application and analysis of the Rule 24(a)(2) factors when it granted M ountview

permission to intervene as a matter of right. 14 Instead, the Church argues that

M ountview had no standing to intervene and that the district court lacked

jurisdiction over M ountview’s intervention claim. W e therefore limit our

intervention discussion to these two issues.



                                       Standing


      14
          Under Rule 24(a)(2),
            [u]pon timely application anyone shall be permitted to intervene in
            an action . . . when the applicant claims an interest relating to the
            property or transaction which is the subject of the action and the
            applicant is so situated that the disposition of the action may as a
            practical matter impair or impede the applicant’s ability to protect
            that interest, unless the applicant’s interest is adequately represented
            by existing parties.
F ED . R. C IV . P. 24(a)(2).

                                          -55-
      Grace United maintains M ountview has no rights under the covenants and

therefore no standing to intervene in this action. According to the Church, the

association lacks standing to enforce the covenants because it neither has

enforcement rights pursuant to original covenant documents nor is it a direct

successor to the interests of a party to the covenant. W e are not convinced.

Supreme Court authority makes clear

      that an association has standing to bring suit on behalf of its
      members w hen: (a) its members w ould otherwise have standing to
      sue in their ow n right; (b) the interests it seeks to protect are
      germane to the organization’s purpose; and (c) neither the claim
      asserted nor the relief requested requires the participation of
      individual members in the law suit.

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

M ountview satisfies these conditions.

      First, there is no question that the individual members of the association

have standing in their own right to sue to enforce the covenants. W yoming treats

“restrictive covenants as contractual in nature, and they are to be interpreted in

accordance with the principles of contract law.” Anderson v. Bommer, 926 P.2d

959, 961 (W yo. 1996). As the W yoming Supreme Court has explained: “if the

covenant runs with the land, it binds the owner whether or not he had knowledge

of it, whereas if it does not run with the land, the owner is bound only if he has

taken the land with notice of it.” Streets v. J M Land & Developing Co., 898 P.2d

377, 379 (W yo. 1995) (citation omitted). The covenants governing the

M ountview Park Addition were filed in June 1952 and declare that they “run with

                                         -56-
the land,” and are binding on all parties to the covenants, “their heirs, successors,

personal representatives, grantees and assigns, and all persons claiming under

them.” Aplt. App. vol. VI, at 2571-72. The covenants also direct that if any

owner of real property within the development violates or attempts to violate the

covenants, “it shall be law ful for any other person or persons owning any real

property situated in said development or subdivision to prosecute any proceedings

at law or in equity against the persons violating or attempting to violate . . . any

of the . . . covenants.” Id. at 2572-73 (emphasis added). Hence, the covenants

are specifically enforceable by any record owner of real property situated in the

development, see Anderson, 926 P.2d at 962 (“As a general rule, a restrictive

covenant may be enforced by one [for] whose benefit it was made.”), against any

other record owner of real property situated in the development, even if that

record owner obtained legal title to its property without actual notice of the

restrictions. The individual members of the association thus have standing to

seek an enforcement of the covenant restrictions.

      Nor has any contest been raised as to the remaining Hunt requirements.

M ountview was created for the purpose of protecting the covenant rights of those

who live in the subdivision, and the association sought to protect those rights in

the instant suit. M oreover, a determination regarding whether the Church’s

proposed daycare center would violate the restrictive covenants did not mandate

participation of the individual members in the suit. No individualized proof was


                                          -57-
required to address M ountview’s request for a declaration that a daycare center

would run counter to the restrictive covenants. The issue therefore, could be

“properly resolved in a group context.” Hunt, 432 U.S. at 344. In sum,

M ountview had standing to intervene in this law suit.



                                     Jurisdiction

      Grace United also asserts the district court erred in permitting M ountview

to intervene because the court lacked jurisdiction over the association’s restrictive

covenant claim, a state law issue. In making this argument, the Church relies on

language from United States v. M artin, 267 F.2d 764 (10th Cir. 1959), and Bantel

v. M cGrath, 215 F.2d 297 (10th Cir. 1954). Neither case provides support for the

Church’s position.

      In M artin, this court noted that the motion to intervene there claimed both

permissive intervention and intervention as a matter of right. 267 F.2d at 768-69.

W e then said that a counterclaim “may be permissively joined if [it and the main

action] present common questions of law and fact, provided of course the

counterclaim rests upon its own jurisdictional footing.” Id. at 769 (emphasis

added). In Bantel, on the other hand, this court held that intervention as a matter

of right was inappropriate because the parties seeking to intervene had done so

after the conflict at issue in the underlying action had become moot. 215 F.2d at

299. Alternatively, we held intervention improper because “Rule 24(a) . . . does


                                         -58-
not grant the right of intervention to try an issue outside the authorized scope of

[the statutory] proceedings, for it was not intended to enlarge upon the

jurisdiction of the court.” Id. at 299. However, the underlying lawsuit was an

action by the Attorney General of the United States against a bank to enforce an

administrative order under the Trading with the Enemy Act, which had vested in

the United States property belonging to German nationals. W e said that the issue

the intervenors were attempting to raise, namely, the validity of the underlying

vesting order, was not within the scope of the enforcement proceeding in which

“the determination that the property is enemy-owed is conclusive, even though

erroneous.” Id.

      Grace United relies on the quoted language from M artin and Bantel

regarding lack of jurisdiction to contend that intervention should be limited to

those controversies in which the district court possesses independent jurisdiction

over both the underlying claim and the claims raised by the intervenor. The

Church’s jurisdictional argument misses the mark.

      First, since M artin and Bantel were decided, statutory jurisdictional rules

were enacted expressly providing a court may exercise supplemental jurisdiction

over intervention claims that are sufficiently related to the main claim over which

the court has federal question jurisdiction. 28 U.S.C. § 1367(a). 15 Thus, section


      15
         On the other hand, the statute set limits on supplemental jurisdiction when
the district court’s subject matter jurisdiction is based on diversity. 28 U.S.C. §
                                                                         (continued...)

                                         -59-
1367(a) provides:

      the district courts shall have supplemental jurisdiction over all other
      claims that are so related to claims in the action within such original
      jurisdiction that they form part of the same case or controversy under
      Article III of the United States Constitution. Such supplemental
      jurisdiction shall include claims that involve the joinder or
      intervention of additional parties.

Id. (emphasis added). In Kelley v. M ichaels, 59 F.3d 1055 (10th Cir. 1995), we

described the import of § 1367(a) as follow s:

      Congress included in the Judicial Improvements Act of 1990 a
      provision, 28 U.S.C. § 1367, clarifying and codifying the federal
      courts’ supplemental jurisdiction. The impetus, in part, was a
      recognition that recent Supreme Court decisions had cast doubt on
      the authority of federal courts to hear some claims w ithin
      supplemental jurisdiction. See H.R.Rep. No. 101-734, 101st Cong.,
      2d Sess. 28, reprinted in 1990 U.S.C.C.A.N. 6873-76; see also Finley
      v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593
      (1989) (denying jurisdiction by a plaintiff against additional,
      nondiverse defendant over a claim related to the underlying federal
      action) . . . . Section 1367 intended to supplant the related and
      somewhat overlapping concepts of ancillary and pendent jurisdiction,
      principally reinstating pre-Finley case law with some additional
      clarification. H.R.Rep. No. 101-734, supra at 28-29. The legislative
      history indicates that “[i] n federal question cases, [§ 1367] broadly
      authorizes the district courts to exercise supplemental jurisdiction
      over additional claims, including claims involving the joinder of
      additional parties.” Id. at 28.

Id. at 1058 (emphasis added). See also J AMES W M . M OORE ET AL ., 6 M OORE ’ S

F EDERAL P RACTICE § 24.22 [1], at 24-82 (3d ed. 2005) (“The federal


      15
         (...continued)
1367(b). See J AMES W M . M OORE ET AL ., 6 M OORE ’ S F EDERAL P RACTICE § 24.22
[2], at 24-82 (3d ed. 2005); see generally Karen Nelson M oore, The Supplemental
Jurisdiction Statute: An Important but Controversial Supplement to Federal
Jurisdiction, 41 E MORY L.J. 31 (1992).

                                        -60-
supplemental jurisdiction statute . . . codified the judicial doctrines of pendent

and ancillary jurisdiction.”); David D. Siegel, Practice Com mentary, reprinted in

28 U.S.C.A. § 1367, at 829-31 (W est 1993) (discussing doctrines of pendent and

ancillary jurisdiction).

      Prior to the adoption of § 1367, comm entary and case law regarding

supplemental jurisdiction made clear that when a party was entitled to intervene

as a matter of right, the court had pendent jurisdiction over the intervenor’s claim

and no independent jurisdictional basis was required. See, e.g., Owen Equip. &

Erection Co. v. Kroger, 437 U.S. 365, 375 n.18 (1978); Int’l Paper Co. v.

Inhabitants of the Town of Jay, M aine, 887 F.2d 338, 346 (1st Cir. 1989); Curtis

v. Sears, Roebuck & Co., 754 F.2d 781, 783 (8th Cir. 1985); 7C C HARLES A LAN

W RIGHT ET AL ., F EDERAL P RACTICE & P ROCEDURE § 1917, at 464 (2d ed. 1986).

Conversely, as we said in M artin, permissive intervention did require that the

district court possess independent jurisdiction over the intervenor’s claim.

W RIGHT ET AL ., supra, at 464-65; Security Ins. Co. of Hartford v. Schipporeit,

Inc., 69 F.3d 1377, 1381 (7th Cir. 1995); Greene v. United States, 996 F.2d 973,

978 (9th Cir. 1993); Int’l Paper Co., 887 F.2d at 346; M oosehead Sanitary Dist.

v. S.G. Phillips Corp., 610 F.2d 49, 52 n.5 (1st Cir. 1979).

      Here, the district court permitted M ountview to intervene as a matter of

right under Rule 24(a)(2). Thus, no independent jurisdictional basis for




                                         -61-
M ountview’s intervention was required. 16 Under 28 U.S.C. § 1367(a), the district

court properly exercised jurisdiction over M ountview’s restrictive covenant claim.



Applicability of the Covenants

      Finally, we are not persuaded by Grace United’s contentions on the merits

that the restrictive covenants do not apply to it and that the district court erred by

submitting to the jury the question of w hether the Church’s proposed daycare

center violated the terms of the covenants.

      Grace United is bound by the covenants. In its attempt to argue otherwise

on appeal, it points out that it is not located on a “lot,” which is the reference

most of the covenants use, but rather is located on a block. 17 It asserts that the

covenants only place restrictions on lot use, without giving any indication as to

how property on a block must be utilized. For example, Paragraph A of the

covenants states that all lots in the neighborhood shall be for single-family

residential dwellings. See Aplt. App., vol. II at 590. Grace United argues that its

block is not subject to any restrictions regarding how the Church property located




      16
        Our decision in Bantel v. M cGrath, 215 F.2d 297 (10th Cir. 1954), is
distinguishable as holding that intervention itself was inappropriate. It was not at
all concerned with whether supplemental jurisdiction existed over a pendent claim
once intervention was granted.
      17
         Paragraph G of the covenants states that a church may be built on block
12, but if it is not, then the block shall be divided into eight lots. See Aplt. A pp.,
vol. II at 591.

                                          -62-
thereon might be used.

      The Church is w rong. W hile Paragraph A of the covenants dictates that all

lots in the neighborhood shall be used for residential purposes, Paragraph E

places additional use restrictions on all land in the subdivision whether that land

is described as a lot or block. It directs that “[n]o noxious or offensive trade or

activity shall be carried on upon any lot or block nor shall anything be done

thereon which may be or become an annoyance or nuisance to the neighborhood.”

Aplt. App., vol. II at 591 (emphasis added). The Church is thus clearly barred

from engaging in any activity that could become a nuisance to the neighborhood.

      W hether the proposed daycare center would constitute a nuisance was

clearly a fact question for the jury to decide. The jury was instructed as follows:

             The D efendant/Intervenor M ountview Park Homeow ners’
      Association has the burden of proof to prove that restrictive
      covenants restrict the plaintiff’s use of its property and that the
      plaintiff’s proposed child care or daycare center violates restrictive
      covenants on the property.
             ...
             It is for you to determine whether the plaintiff is bound by
      restrictive covenants and whether such covenants would be violated
      by the plaintiff’s operation of the child care or daycare center.
             You’re instructed that a nuisance is a class of wrong which
      arises from an unreasonable, unwarranted or unlawful use by a
      person of his own property, working obstruction or injury to the right
      of another.

App. App., vol. V at 2263-64. The jury was also given a special verdict form on

which it was required to answer the following question: “Do you find by a

preponderance of the evidence that Grace United M ethodist Church’s proposed


                                         -63-
child care or daycare center violates the covenants applicable to that block of

property, fifth filing, block 12.” Id. at 2275. The jury answ ered this question in

the affirmative. Id.

      The jury’s findings are supported by the evidence. In light of Paragraph E

of the covenants, which barred any activity “which may be or become an

annoyance or nuisance to the neighborhood,” id., vol. II at 591, the jury was

instructed that “a nuisance is a class of wrong which arises from an unreasonable,

unwarranted or unlawful use by a person of his own property, working

obstruction or injury to the right of another.” Id., vol. V at 2264 (emphasis

added). This instruction was in complete accord with W yoming law. See, e.g.,

Brown v. Johnston, 85 P.3d 422, 430 (W yo. 2004) (“W e have defined nuisance as

a class of wrongs w hich arise from an unreasonable, unwarranted, or unlawful use

by a person of his own property, working an obstruction or injury to the right of

another.”) (internal quotations and citation omitted); Edgcomb v. Lower Valley

Power & Light, Inc., 922 P.2d 850, 859 (W yo. 1996) (same); Hein v. Lee, 549

P.2d 286, 291 (W yo. 1976) (same). The jury’s conclusion in regard to the

Church’s RLUIPA claim, see Grace United M ethodist Church, 427 F.3d at 797

n.10, was that Grace United’s proposed operation of the daycare center was not a

sincere exercise of its religion. The evidence supported the conclusion that it was

instead, as asserted by the City and M ountview, a commercial activity barred by

the specific zoning restrictions for the neighborhood. Because the Church’s


                                         -64-
proposed daycare would have been unlawful under the City’s zoning restrictions,

the jury could reasonably conclude it would constitute a nuisance in accordance

with the instructions provided to it by the court.



                                         VII

      For the foregoing reasons, we grant in part Grace United’s petition for

rehearing and A FFIR M . Grace United’s petition for rehearing en banc was

circulated to all the circuit judges of the court in regular active service. No judge

has requested a poll, and the suggestion for rehearing en banc is therefore denied.




                                         -65-
