United States District Court, W.D. Washington, Seattle
VLADAN MILOSAVLEJEVIC and ANGEL MICHAIL AND GABRIIEL, LLC, Plaintiffs/Petitioners,
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
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
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. 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.
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”). 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.
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).
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
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.
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.
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.
Standard of Review for Motions of Summary Judgment
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.
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.
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.
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 ...