Epona, LLC, a California limited liability company; Michael Fowler, an individual, Plaintiffs-Appellants,
County of Ventura, a political subdivision of the State of California; Does, 1-25, Defendants-Appellees.
and Submitted October 3, 2017 Pasadena, California
from the United States District Court No.
2:16-cv-06372-DMG-PLA for the Central District of California
Dolly M. Gee, District Judge, Presiding
Matthew D. Hinks (argued) and Benjamin M. Reznik, Jeffer
Mangels Butler & Mitchell LLP, Los Angeles, California,
J. McKaig (argued), Assistant County Counsel; Leroy Smith,
County Counsel; County of Ventura County Counsel, Ventura,
California; for Defendants-Appellees.
Before: DIANA GRIBBON MOTZ, [*] MILAN D. SMITH, JR., and JACQUELINE
H. NGUYEN, Circuit Judges.
panel reversed the district court's dismissal of
appellants' First Amendment claim, affirmed the dismissal
of appellants' Religious Land Use and Institutionalized
Persons Act claim, vacated the denial of a preliminary
injunction and remanded in an action challenging the County
of Ventura's permitting scheme, which requires
individuals to obtain a Conditional Use Permit to host
weddings on their properties.
Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012),
the panel first held that appellants functioned as wedding
"vendors" because they sought to profit from
facilitating and providing a commercial space for weddings.
The panel held that because they were wedding vendors, they
may suffer economic injury as a result of the permitting
scheme, and an injunction may redress this harm. Thus, the
panel held that appellants had Article III standing to bring
their First Amendment challenge.
panel reversed the dismissal of appellants' First
Amendment claim, holding that the permitting scheme lacked
definite and objective standards and also failed to provide
any limitation on the time period within which a permit must
be approved. Together, these defects conferred unbridled
discretion on permitting officials. The panel affirmed the
dismissal of appellants' equal treatment claim under the
Religious Land Use and Institutionalized Persons Act because
appellants did not assert that they were a religious
institution or assembly. The panel vacated the district
court's denial of appellants' motion for a
preliminary injunction as to the First Amendment claim
because the motion was no longer moot, and remanded to the
district court for its consideration in the first instance.
SMITH, CIRCUIT JUDGE.
LLC and Michael Fowler (collectively, Appellants) appeal the
district court's order dismissing Appellants' First
Amendment and Religious Land Use and Institutionalized
Persons (RLUIPA), 42 U.S.C. § 2000cc et seq.,
claims, and denying as moot Appellants' motion for a
preliminary injunction. Appellants challenge the County of
Ventura's (the County) permitting scheme, which requires
individuals to obtain a Conditional Use Permit (CUP) to host
weddings on their properties.
reverse the dismissal of Appellants' First Amendment
claim because the permitting scheme vests permitting
officials with unbridled discretion. We affirm the dismissal
of Appellants' equal treatment claim under RLUIPA because
neither Appellant is a religious institution or assembly. We
vacate the district court's denial of Appellants'
motion for a preliminary injunction, and remand to the
district court for its consideration in the first instance
because the motion is no longer moot.
AND PROCEDURAL BACKGROUND
Fowler is Epona, LLC's sole member, and owns a 40-acre
parcel of land (the property) in Ventura County. The property
is zoned for agricultural use, and neighboring properties
either are agricultural, or are designated as open spaces.
Fowler created a garden area on the property, which he hoped
to rent out for use in wedding ceremonies and related events.
County's Non-Coastal Zoning Ordinance (NCZO) describes
permissible land uses in specific zones. NCZO § 8105-4.
Outdoor weddings are classified as "temporary
outdoor" events under NCZO § 8102-0, which
encompasses "[o]utdoor recreational events such as
harvest festivals, amusement rides, historic re-enactments,
animal events, art shows, concerts, craft fairs, weddings,
and religious revival meetings." In order to hold a
temporary outdoor event on an agriculturally zoned property,
the landowner must apply for and receive a CUP.
NCZO provides for issuance of a CUP when certain standards
are satisfied, or where "such conditions and
limitations, including time limits, as the decision-making
authority deems necessary, are imposed to allow the standards
to be met." Id. § 8111-184.108.40.206. At the
time Appellants applied for a CUP, the NCZO stated that a
permit "may" issue if the applicant meets these
standards, and required the permitting official to make
"[s]pecific factual findings" that each standard
"can be satisfied." After the initiation of this
litigation, the County amended the CUP scheme to provide that
a permit "shall" issue if the relevant standards
have been satisfied, and to require specific factual findings
in support of an application denial. Id. Under both
schemes, the applicant bears the burden of proving that all
of the relevant standards can be met.
CUP application sought permission to use the property for up
to 60 temporary outdoor events per year, including weddings.
County agencies reviewed the application, and found there
were no grounds for denying the permit.
County's Planning Commission held a public hearing on
Appellants' application, at which County staff presented
its no-impact findings. After receiving objections from
neighboring land owners, the Commission denied the
application. In a subsequently issued resolution, the
Commission based its denial on the following findings:
(1) The venue is not compatible with the rural community . .
(2) The venue has the potential to impair the utility of
neighboring property or uses and is inconsistent with the
finding set forth in the NCZO § 8111-220.127.116.11.c; and
(3) The venue has the potential to be detrimental to the
public interest, health, safety, convenience, or welfare and
is inconsistent with the finding set forth in the NCZO §
appealed the denial of their CUP application to the Board of
Supervisors. Contrary to its recommendation in the previous
report, this time the Commission staff prepared a report that
recommended denial of the CUP application. The Board split
its vote evenly on the application, which had the effect of
affirming the Commission's denial.
filed a complaint in federal district court on August 24,
2016, followed by an amended complaint on October 7, 2016,
both of which alleged (1) abridgment of free speech in
violation of the First Amendment and California Constitution
Article 1, § 2; (2) violation of RLUIPA; (3) denial of
equal protection under the United States and California
Constitutions; (4) civil rights violations pursuant to 42
U.S.C. § 1983; (5) entitlement to a writ of mandate
pursuant to California Code of Civil Procedure § 1094.5;
and (6) a request for declaratory relief. Appellants also
filed a motion for preliminary injunctive relief on November
4, 2016, seeking to enjoin enforcement of the amended CUP
scheme. The County filed a motion to dismiss for failure to
state a claim the same day.
district court granted the County's motion to dismiss and
denied Appellants' motion for a preliminary injunction.
The district court held that Appellants could only challenge
the CUP scheme as applied, and thus dismissed their facial
challenge to the amended CUP scheme without leave to amend.
The court then dismissed, with leave to amend,
Appellants' as-applied challenge for failing to plausibly
allege that the CUP was improperly denied based on content.
It further held that the CUP scheme did not grant unbridled
discretion to permitting officials, and did not require time
limits within which the County must act on a permit
application because the scheme is content neutral. The court
similarly dismissed Appellants' equal protection claims.
The district court also found that Appellants had not shown
either a substantial burden on religious exercise or unequal
treatment as a religious assembly or institution under
RLUIPA. Finally, the district court denied Appellants'
motion for a preliminary injunction as moot because it had
dismissed the entire amended complaint. Appellants timely
AND STANDARD OF REVIEW
jurisdiction over this appeal pursuant to 28 U.S.C. §
1291. We review the district court's dismissal of
Appellants' claims de novo. Fayer v.
Vaughn, 649 F.3d 1061, 1063-64 (9th Cir. 2011) (per
curiam). We review the district court's denial of a
preliminary injunction for abuse of discretion.