                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2004

Lighthouse Inst v. Cty of Long Branch
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2343




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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-2343

                           THE LIGHTHOUSE INSTITUTE
                               FOR EVANGELISM INC.,
                         d/b/a THE LIGHTHOUSE MISSION;
                            KEVIN BROWN, REVEREND,
                                         Appellants

                            UNITED STATES OF AMERICA,
                                    Intervenor-Plaintiff in D.C.
                                             v.

              THE CITY OF LONG BRANCH; BCIC FUNDING CORP;
              BREEN CAPITAL SERVICES, INC.; ABRAMS GRATTA
                & FALVO, P.C.; PETER S. FALVO, ESQ.; EUGENE
                    M. LA VERGNE, ESQ.; JOHN DOES A-Z
                                  _________

     On Appeal from the United States District Court for the District of New Jersey
                  District Judge: The Honorable W illiam H. Walls
                                (Civil No. 00-03366)
                                     _________

                                 Argued March 22, 2004
                                      _________

               Before: FUENTES, SMITH and GIBSON, Circuit Judges*

                                  (Filed: May 28, 2004)


Roman P. Storzer (argued)
Anthony R. Picarello, Jr.
Derek J. Gaubatz


* The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for Eighth Circuit, sitting by designation.
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW
Suite 605
Washington, DC 20036

Michael S. Kasanoff
Suite 321
157 Broad Street
P.O. Box 8175
Red Bank, NJ 07701

Attorneys for Appellants


Audrey J. Copeland (argued)
Marshall, Dennehey, Warner, Coleman & Goggin
18 Campus Boulevard
Suite 250
Newtown Square, PA 19073

Howard B. Mankoff
425 Eagle Rock Avenue
Suite 302
Roseland, NJ 07068


Attorneys for Appellee

                                 _____________________

                                OPINION OF THE COURT
                                 _____________________


SMITH, Circuit Judge.

       Appellants, the Lighthouse Institute for Evangelism, Inc. and Reverend Kevin Brown

(collectively, “the Mission”), appeal the District Court’s denial of its Motion for Preliminary

Injunction. The Mission sued the City of Long Branch, New Jersey (“the City”) under 42

                                              2
U.S.C. §§ 1983, 3601 and 2000cc et seq., challenging the facial and as applied legality of

Long Branch’s zoning ordinance (“the Ordinance”) under the First and Fourteenth

Amendments and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42

U.S.C. §§ 2000cc et seq. Both parties moved for summary judgment and the Mission also

sought a preliminary injunction. At the time these cross-motions were filed, discovery had

been stayed since its early stages.

       The District Court ruled on the motions without conducting an evidentiary hearing,1

dismissing all of the Mission’s as applied challenges for either lack of exhaustion or ripeness,

and denying the Mission’s Motion for Preliminary Injunction.2 In doing so, it noted that

“Plaintiffs will not likely be able to prove, even after further factual development, that the

Ordinance inherently violates their rights under RLUIPA.”           Because we agree that the

Mission did not satisfy its burden of demonstrating a likelihood of success on the merits, we

will affirm the District Court’s denial of the Mission’s Motion for Preliminary Injunction.


  1
     The Mission has not argued that the absence of such a hearing was improper, nor is
there any indication in the record that either party requested a hearing on this motion.
This Court held in Sims v. Greene, 161 F.2d 87, 89 (3d Cir. 1947), that the failure to hold
an evidentiary hearing to allow a party to defend against the grant of a preliminary
injunction may be grounds for vacating such an injunction. There is no caselaw
indicating that the contrary is also true, i.e., that failure to hold a hearing to allow a party
to present evidence in support of its motion for injunction may be cause for vacatur. In
the absence of argument from the Mission on this point, we need not address it.
  2
     The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a) and 1367.
This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), which permits circuit
courts to review an interlocutory decision of the District Court denying a motion for a
preliminary injunction. The Mission challenges only the denial of the preliminary
injunction as to its facial claims in this appeal.

                                               3
                                              I.

       Because we write only for the parties, we set forth only a brief recitation of the facts.

The Mission is a Christian church which “seeks to serve the poor and disadvantaged in

downtown Long Branch, New Jersey.” From 1992 to 1994, the Mission carried out its

activities from a rented location at 159 Broadway in the City of Long Branch. On November

8, 1994, the Mission purchased 162 Broadway, a property across the street from its rented

property. Both properties are located in Long Branch’s C-1 Commercial District. The

Mission submitted a Zoning Permit Application to the City which sought permission to

operate on the purchased property “as a church” and also requested that all applicable fees

“be waived as a nonprofit church.” The City denied that application because the proposed

use was “not a permitted use in the Zone.” The Letter of Denial also noted that the proposed

use “would require prior approvals from the Zoning Board of Adjustment, including but not

limited to, a use variance, site plan approval, & parking variance.” In response to the

Mission’s request that fees be waived, the Letter advised that “any waiver of fees . . . must

come from the City Council.” The Mission did not appeal this decision, nor did it seek a

variance from the City. Thereafter, the Mission commenced this civil action and moved for

a Preliminary Injunction. The District Court denied the request for injunctive relief.

                                              II.

       We review the denial of a preliminary injunction for abuse of discretion, but any

“determination prerequisite to the issuance of an injunction” is reviewed according to the



                                               4
standard applicable to that determination. Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,

309 F.3d 144, 156 (3d Cir. 2002) (internal citations omitted). This Court exercises plenary

review over the District Court’s conclusions of law and its application of the law to the facts.

Id. Although an appellate court generally will not disturb the factual findings supporting the

disposition of a preliminary injunction motion in the absence of clear error, in the context of

a First Amendment claim, this Court has a “constitutional duty to conduct an independent

examination of the record as a whole, . . . and cannot defer to the Court’s factual findings

unless they concern witnesses’ credibility.” Id. at 156-57 (internal quotations and citations

omitted).

                                              III.

       Four factors determine whether a District Court will issue a preliminary injunction.

The first two threshold showings which the movant must demonstrate are: (1) that he is

reasonably likely to prevail eventually in the litigation, and (2) that he is likely to suffer

irreparable injury without relief. Tenafly, 309 F.3d at 157. If he is successful in satisfying

these first two factors, then the court will consider, to the extent relevant, (3) whether an

injunction would harm the party opposing the motion more than the movant, and (4) whether

granting the relief would serve the public interest. Id. The District Court held, and we agree,

that the M ission failed to make the first required showing, i.e., that it had a reasonable

likelihood of success on the merits.

       The City’s Ordinance Number 20-6.13 (“the Ordinance”), identifies the permitted uses



                                               5
in the C-1 Central Commercial District, which include, inter alia: “Assembly hall, bowling

alley and motion-picture theater, provided that it is carried on within a building.” Ord. No.

20-6.13(A)(3), as amended in Ordinance § 345-30. The Ordinance does not identify

“church” as a permitted use. Because its application to proceed as a church was denied, the

Mission argues that “Long Branch does not permit churches as ‘assembly halls.’” Thus, in

the Mission’s view, only secular assemblies may operate in the district. The record on appeal

does not support this argument, however.

       Because the Mission listed “church” in its application as the proposed use for the

property, it is not clear whether the City would permit the Mission to operate under the

assembly hall category, had it listed that use in its application. The Ordinance does not

define “assembly hall.” As the Mission points out in its brief, however, the American

Planning Association’s Glossary of Zoning, Development and Planning Terms includes

religious assemblies in each of its suggested definitions for the term “assembly hall.” See

Michael Davidson & Fay Dolnick (eds.), A Glossary of Zoning, Development, and Planning

Terms, American Planning Association Planning Advisory Service Report Nos. 491/492 at

39-40.3 Although a number of religious uses are identified in these definitions of assembly



  3
     The American Planning Association provides sample definitions from various zoning
statutes around the country in order to define the terms listed in its glossary. In each of
the definitions provided for “assembly hall,” religious uses are included. The glossary
provides, in relevant part:
    assembly hall . . . A building or portion of a building in which facilities are
    provided for . . . religious . . . purposes. . . .
    A meeting place at which the public or membership are assembled regularly or

                                             6
hall, we note that the term “church” may in fact encompass a range of activities which would

extend beyond the concept of an “assembly hall.” See, e.g., Grace United Methodist Church

v. City of Cheyenne, 235 F. Supp. 2d 1186, 1996 (D. Wyo. 2002). Therefore, denial of the

Mission’s application as a “church” does not establish whether the Mission’s application

would have been approved as an “assembly hall.”

       It is significant that the sparse record before the District Court contained no evidence

establishing that “Long Branch only allows assemblies of the secular sort,” as the Mission

contends in this appeal. The record before us reveals only the denial of the Mission’s

application which made no attempt to associate its proposed use with the assembly hall

category. Moreover, as the Mission points out, there are a number of churches currently

located within the C-1 district. The underlying action continues before the District Court on

the facial claims, but at the early stage at which this motion was considered, the Mission

simply did not make the kind of factual showing necessary to establish a likelihood of

success on the merits.

                                             IV.

       With regard to its facial Free Exercise claim, the Ordinance is properly considered as



   occasionally, including, but not limited to . . . churches . . . and similar places of
   assembly. . . .
   A structure for groups of people to gather for an event or regularly scheduled
   program. Places of public assembly include, but are not limited to . . . religious
   institutions . . . and similar facilities. . . .
   A building or a portion of a building used for gathering for such purposes as . . .
   worship, . . . church, or chapel[.] . . .

                                               7
a neutral law of general applicability because churches are only one of numerous uses which

are not specifically permitted uses and the purpose of the Ordinance is not aimed at speech,

but rather at promoting the revitalization of the City’s downtown area. See Dep’t of Human

Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990); see also Tenafly, 309 F.3d at 165.4

Other than the conclusory allegations in its complaint, as reiterated in the declaration of

Kevin Brown, the Mission did not proffer any evidence to show that the Ordinance was

either not neutral or not generally applicable. Under Smith, a Free Exercise claim alone

cannot bar application of a neutral law of general applicability. 494 U.S. at 881. For the

reasons described below, the Mission failed to show that it had a likelihood of success on any

hybrid claim.

       With respect to the Mission’s claim that the Ordinance violated its rights to Free

Speech and Assembly, we undertake rational basis review to determine whether the

legislation is “reasonable, not arbitrary” and bears “a rational relationship to a [permissible]

state objective.” Belle Terre v. Boraas, 416 U.S. 1, 8 (1974). The Ordinance in this case is

content-neutral because it is not aimed at prohibiting religious speech, but is rather a zoning

ordinance which identifies certain uses which advance the City’s goal of promoting

  4
    See also Mount Elliott Cemetery Ass’n v. City of Troy, 171 F.3d 398, 405 (6 th Cir.
1999) (“Smith applies to the free exercise challenge to the zoning decision in this case.”);
Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 (8 th Cir. 1991) (“Absent
evidence of the City’s intent to regulate religious worship, the ordinance is properly
viewed as a neutral law of general applicability”); Rector, Wardens, and Members of the
Vestry of St. Bartholomew’s Church v. City of New York, 914 F.2d 348, 354 (2d Cir.
1990) (“Landmarks Law is a facially neutral regulation of general applicability within the
meaning of Supreme Court decisions”).

                                               8
commercial development in its downtown district. Renton v. Playtime Theatres, Inc., 475

U.S. 41, 47 (1986). Like the ordinance examined in Renton, the omission of churches as a

permitted use in the district resulted not from the content of the speech involved, but from

the secondary effect (or lack thereof) of their presence, i.e., churches were not identified as

promoting commerce. Further, the Mission has not shown that there were no other channels

for communication; rather, churches are specifically permitted in other districts and the

Mission had been allowed to operate as a church in its rented property in the C-1 district.

Accordingly, we agree with the District Court that the Mission did not show that it was likely

to succeed on its Free Speech claim.

       On the Mission’s freedom of association claim, where the rights concerned are

protected by the First Amendment and “abridgement of such rights, even though unintended,

may inevitably follow from varied forms of governmental action,” the regulation will only

be upheld where the reasons advanced for its enactment were constitutionally sufficient to

justify its possible deterrent effect upon such freedoms.” NAACP v. Alabama ex rel.

Patterson, 357 U.S. 449, 461 (1958). Even under this standard, however, the Mission did

not demonstrate a likelihood of success on the merits. Tellingly, the Mission had not been

prohibited or restricted at its rented location. As discussed above, the Mission presented no

evidence that its application would have been rejected had it applied as an assembly. It is

undisputed that the Mission could have operated by right in other districts in the City.

       Finally, as to its Equal Protection claim, the Mission did not establish, under Cleburne



                                              9
v. Cleburne Living Center, 473 U.S. 432 (1985), that it was not treated like secular

assemblies because it did not demonstrate that it would be prohibited from operating in the

C-1 district under the assembly hall category. 473 U.S. at 439 (“all persons similarly situated

should be treated alike”). Additionally, due to the dearth of evidence in the record before the

District Court on the Mission’s Motion for Preliminary Injunction, the Mission also failed

to show that the secular assemblies it identified as having been permitted in the district (i.e.,

the Portuguese Club, the Spanish Fraternity of Monmouth County, the Brookdale Learning

Center, the Seashore Day Camp, the New Jersey Repertory Company Theater and the

Monmouth Medical Center Free Clinic) were similarly situated.

                                               V.

       The Mission contends that the City violated subsections (a) and (b) of RLUIPA, 42

U.S.C. § 2000cc-2.5 The Mission did not establish a likelihood of success on its “substantial

burdens” RLUIPA claim under part (a), because it had operated for years at the rented

location in the district and thus its opportunity for religious exercise was not curtailed by the

Ordinance. See Civil Liberties for Urban Believers (C.L.U.B.) v. City of Chicago, 342 F.3d

752, 761 (7th Cir. 2003) (“substantial burden on religious exercise is one that necessarily

bears direct, primary, and fundamental responsibility for rendering religious exercise . . .

  5
     The Mission emphasizes its claim under part (b)(1), the “Equal Terms” provision, in
this appeal but does not abandon its claims under the other parts of the statute. We will,
therefore, address all of the Mission’s facial claims under RLUIPA. In doing so, we note,
as did the District Court, that the caselaw interpreting this relatively new statute in this
and other Circuits is scarce. Because of the state of the record before the District Court in
this case, we do not undertake in this opinion to clarify the state of the law in this area.

                                               10
effectively impracticable”). Further, it is undisputed that the Mission could have operated

as a church by right in other districts in the City.

       Similar weaknesses also plagued the Mission’s claim under part (b)(1), the Equal

Terms provision. Because the Mission did not show that it would be prohibited from

operating in the district if it applied under the “assembly hall” category, it could not show

that the Ordinance, on its face, treated it on less than equal terms than a nonreligious

assembly. Indeed, as noted above, the Mission also failed to produce evidence to support its

contention that the secular assemblies it identified were actually similarly situated such that

a meaningful comparison could be made under this provision. See Congregation Kol Ami v.

Abington Township, 309 F.3d 120, 125 (3d Cir. 2002).

       The Mission did not show a likelihood of success on its “Nondiscrimination” claim

under part (b)(2) because there is no indication on the face of the statute that any distinction

is drawn between religious and secular assembly halls (or in any other category, for that

matter) and the Mission did not produce any other evidence to suggest that the City had

interpreted it as such. In fact, the very definition for assembly hall that the Mission provided

suggests that, absent evidence to the contrary, the Ordinance is probably neutral with respect

to the inclusion of religious organizations and uses within its assembly hall category.

       Finally, the Mission also failed to demonstrate that it had a likelihood of success on

its claim that the City violated the “Exclusion and limits” provision of RLUIPA under part

(b)(3), by either totally excluding religious assemblies from the jurisdiction or unreasonably



                                               11
limiting religious assemblies, institutions or structures within a jurisdiction. It is undisputed

that the Mission was not totally excluded from the jurisdiction because it could have operated

in other districts in the City by right. The record contained no indication that the City would

have denied the Mission’s application to operate within the C-1 district had it applied under

the category of “assembly hall.” As the Mission did not show that it was limited as a

religious assembly in the C-1 district, there was therefore no need for the District Court to

assess whether the alleged limitation or exclusion was “unreasonable.”

                                              VI.

       On the basis of the record which was available to the District Court when it decided

this Motion for Preliminary Injunction, there simply was no basis for the District Court to

have concluded that the Mission had a likelihood of success on either of its facial challenges

under the First Amendment or RLUIPA.             The Ordinance does not exclude religious

assemblies on its face and the Mission did not produce any evidence to show that the City’s

policy is such that it interprets the Ordinance to do so. Therefore, we will affirm the decision

of the District Court.




                                               12
Lighthouse Institute v. City of Long Branch, No. 03-2343.

JOHN R. GIBSON, Circuit Judge, concurring in the result and in the judgment.

      I concur in the judgment, which denies the motion for a preliminary injunction

and leaves open the possibility of further consideration of the issues on the motion

for permanent injunction.

      I have, however, some reservations about language in the court's opinion and

am of the thought that these issues should be ventilated in the hearing still to come.

The term "Assembly Hall" seems on its face to include a hall where people assemble

for religious purposes. In my view the rejection of the church's application therefore

demonstrates approval of secular assemblies and rejection of religious assemblies.

Nor is the effect of the discrimination mitigated because the church could have

operated elsewhere in the city; the church's mission, to "serve the poor and

disadvantaged in downtown," can only be accomplished downtown. I concur with

the understanding that these issues should be open for further consideration at the

permanent injunction stage, rather than being barred by anything in the court's

decision today.




                                         13
