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Milosavlejevic v. City of Brier

United States District Court, W.D. Washington, Seattle

September 7, 2017

VLADAN MILOSAVLEJEVIC and ANGEL MICHAIL AND GABRIIEL, LLC, Plaintiffs/Petitioners,
v.
CITY OF BRIER, Defendant/Respondent.

          ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PETITIONER'S MOTIONS FOR LEAVE TO FILE SURREPLY AND TO CONTINUE TRIAL AND AMEND CASE SCHEDULE

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter comes before the Court on Respondent's Motion for Summary Judgment. Dkt. #32. Petitioner's claims arise from Respondent's denial of his request for a height variance necessary to build a personal chapel. Petitioner's proposed personal chapel would exceed Respondent's 30-foot residential land-use zone's height-cap.[1] Dkt. #20 at 2. Respondent asks the Court to dismiss Petitioner's claims on the basis that (1) Petitioner does not meet the elements necessary to establish a violation of the Religious Land Use and Institutionalized Persons Act's (“RLUIPA”), 42 U.S.C. § 2000ee, substantial burden provision; (2) Petitioner does not meet the elements necessary to establish a violation of RLUIPA's equal terms provision; (3) Petitioner's Civil Rights Act, 42 U.S.C. § 1983 (“Section 1983”), claims are without legal or factual basis; and (4) delay damages are not available in any event. Dkt. #32. Petitioner opposes the Motion, arguing that genuine disputes exist as to material facts, and therefore respondent is not entitled to summary judgment. Dkt. #33. Additionally, Petitioner has filed a Motion for Leave to File a Surreply and a Motion to Continue Trial Date and Amend Case Schedule. Dkts. #37 and #38. For the reasons discussed below, the Court now GRANTS Respondent's Motion for Summary Judgment and DENIES Petitioner's Motions For Leave To File Surreply and To Continue Trial and Amend Case Schedule.

         II. BACKGROUND

         Petitioner Vladan Milosavlejevic seeks to build a personal Serbian Orthodox chapel on property owned by his company, Angel Michail and Gabriiel, LLC., in the City of Brier, Washington (“City”).[2] Dkts. #1-1 at ¶ 2 and #33-1 at ¶ ¶ 22-22. To comply with religious standards, Petitioner asserts that his chapel must meet specific architectural dimensions, including two domes, each spanning 40-feet five and one-half inches from the interior floor to the exterior height. Dkt. #17 at 6. Petitioner's property is located in a residential land-use zone. Id. Prior to seeking to build a chapel, Petitioner worshipped in his home, and attended Serbian Orthodox church services in King and Snohomish Counties. Dkts. #32 at 7 and #34 at 3.

         Under Brier Municipal Code (“BMC”) 17.28.010(E), buildings in single-family residential zones may not exceed a maximum height of 30 feet. Individuals planning to erect structures exceeding 30 feet must apply and be approved for height variances in addition to building permits. Dkt. #34 at 12. To obtain a variance, applicants must meet eight criteria. Administrative Record (“AR”) at 72. The procedure for processing variance applications is set forth in BMC 17.36.050(E).

         On May 19, 2015, Petitioner applied for a height variance to construct his chapel. AR 2-3. As proposed, Petitioner's chapel would exceed the City's single-family residential height limit by ten feet, five and one-half inches. Petitioner asserts that his proposed chapel domes are “vehicle[s] for . . . prayers to be sent to the heavens.” Id. at 25. Petitioner states that while his chapel height specifications originate from his grandfather's wishes, the 40-foot dome measurement originates from the Serbian Orthodox belief that 40 is a holy number. Id. at 56; Dkt. #32-1 at 7. According to an architectural report obtained by City Planner Lauren Balisky, under communism, Serbians were prohibited from developing traditional Serbian Orthodox churches in the Byzantine style of architecture. AR 120 (Ex. K). Since then, “Serbs in exile, especially in the United States, [are] in a better position to develop previously built church building traditions than indigenous communities.” Id. The architectural report notes that Serbian Orthodox churches are “not supposed to look like a house, as their functions are completely and fundamentally different. Thus, heights should not be constrained to residential heights.” Id. at 120-22. The Serbian Orthodox U.S. and Canada's Western American Diocese note that a church's height must be proportional to its footprint in length and width. Id. at 123 (Ex. A).

         On March 30th, the Commission voted unanimously to recommend denying Petitioner's variance application, and directed staff to prepare a report and recommendation to the City Council for consideration at its April 20, 2016 meeting. Id. at 344. On April 20th, the Commission reviewed the proposed Report and Recommendation, and voted to postpone action until May 18, 2016, due to Petitioner's allegations that denying his application would constitute a religious rights violation. Id. The Commission also authorized its Chair to re-open the hearing on the application if recommended by the City Attorney, which he did on May 2, 2016. Id. On May 18th, the Commission held the hearing, received a Final Revised Staff Report with attachments, and again heard from Petitioner, three members of the public, and City staff. AR 346-468. The Commission then passed a motion to approve a report to the City Council, recommending Petitioner's variance be denied. Id. at 343-45. The Commission's report noted that Petitioner met only two of eight mandatory criteria for granting variances. Id. at 344 and 349-57. On July 19, 2016, the City Council denied Petitioner's application. Dkt. #17 at 21.

         Petitioner then filed a Complaint in Snohomish County Superior Court, alleging that the variance procedure violated Washington's Land Use Petition Act (“LUPA”), RCW 36.70C, et seq., and that the denial of the variance burdens his right to due process, free exercise of religion, and equal protection of the law. Id. at ¶ 31. Additionally, Petitioner alleged he suffered discrimination by the City because staff had personal vendettas against him. Id. at ¶ ¶ 29-30. Petitioner believes the City's Mayor, Bob Colinas, is of Croatian heritage and acted vengefully against Petitioner who identifies as Serbian. Dkt. # 35-1 at 35-36.

         On September 9, 2016, the case was removed to this Court. Dkt. #1 at 1. On March 10, 2017, the Court denied Petitioner's LUPA claim. Dkt. #24. The Court now addresses Petitioner's remaining RLUIPA and Section 1983 claims.

         III. DISCUSSION

         A. Standard of Review for Motions of Summary Judgment

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling on summary judgment, courts do not weigh evidence to determine the truth of the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248.

         Courts must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Meyers, 969 F.2d at 747 (rev'd on other grounds). However, to survive summary judgment, the nonmoving party must make a “sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a scintilla of evidence in support of the petitioner's position will be insufficient; there must be evidence on which the jury could reasonably find for the petitioners.” Anderson, 477 U.S. at 251.

         B. RLUIPA Claim

         RLUIPA was established to protect the “free exercise of religion from government regulations.” Anselmo v. County of Shasta, Cal., 878 F.Supp.2d 1247, 1254 (E.D. Cal. 2012) (citing Guru Nanak Sikh Soc. Of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir. 2006)). RLUIPA contains several provisions limiting government regulation of land use, referred to as: (1) the substantial burden provision, (2) the equal terms provision, (3) the nondiscrimination provision, and (4) the exclusions and limits provision. See 42 U.S.C. § 2000cc; Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1169 & n.24 (9th Cir. 2011); see also Holy Ghost Revival Ministries v. City of Marysville, 98 F.Supp.3d 1153, 1170-71 (W.D. Wash. 2015). Petitioner asserts claims under RLUIPIA's first and second provisions. Dkt. # 1-1 at ¶ ¶ 22 and 24.

         Under RLUIPA's substantial burden provision, a “government land-use regulation ‘that imposes a substantial burden on the religious exercise of a [person, including a] religious assembly or institution' is unlawful ‘unless the government demonstrates that imposition of the burden . . . is in furtherance of a compelling government interest; and is the least restrictive means of furthering that compelling governmental interest.'” Int'l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1066 (9th Cir. 2011) (quoting 42 U.S.C. § 2000cc(a)(1)). Free religious exercise includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). RLUIPA provides that “[t]he 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 ...


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