We previously reported on the lawsuit filed by Harbor Missionary Church against San Buenaventura, California involving the City’s denial of a conditional use permit to allow the Church to continue to operate a soup kitchen in a residential neighborhood. The U.S. District Court for the Central District of California denied the Church’s motion for a preliminary injunction and the Church appealed to the Ninth Circuit (prior post available here). The Church’s appeal of that decision is significant because of the possibility that the Ninth Circuit will weigh-in on the effect of Burwell v. Hobby Lobby in the land use context. We previously reported on the potential effect of the Supreme Court’s decisions in Holt v. Hobbs and Hobby Lobby here.

One preliminary issue on appeal is which order the Ninth Circuit should review. Although the District Court issued a short order from the bench on July 9, 2014 denying the Church a preliminary injunction on the ground that there was no substantial burden on religious exercise since an alternate location was available to the Church, it invited the City to prepare a more substantive order for it to consider and issue at a later date. Nine days later, the City submitted a 14 page proposed order that the District Court adopted in full, with the addition of one sentence – “The Court has read the proposed order denying plaintiff’s motion for preliminary injunction and finds the proposed order totally consistent with the Court’s order of July 9, 2014 …” The Church, however, contends that the July 18 order is not consistent with the District Court’s bench ruling, because the July 18 order considered the issues of compelling governmental interests and least restrictive means:

Here, the City considered less restrictive means – the issuance of a CUP subject to conditions – but ultimately determined, based on years of experience with Harbor’s program, that Harbor’s use was so incompatible with the neighborhood, and so detrimental to the health, safety, and welfare of its neighbors, that outright denial of the permit was the only way of achieving its compelling governmental interest.

On appeal, the Church argues that the Court’s July 9 order should be reversed because there is no evidence in the record that alternative sites exist for the Church to minister to the homeless, and, relying on Hobby Lobby, the risk to the Church in the form of a $1,000 penalty and imprisonment to continue its religious ministry is a substantial burden. In Hobby Lobby, the Supreme Court found a substantial burden in part because a privately held corporation risked facing a penalty of $100 per day for each employee to whom it refused to supply insurance for contraceptives under Obamacare.

The Church also claims the July 18 order should be reversed because less restrictive means are available to the City, including through use of the police force to protect against crime. The Church in its brief provides examples of what less restrictive means were available to the City:

Suppose, for example, that the City had limited the homeless ministry’s hours of operation to just one hour at lunchtime, and had permitted the Church to provide only traditional prayer and a meal, and only to five homeless people a day. Or suppose the City had also restricted the Church to serving only those five homeless people it picks up with its van at a location outside the neighborhood and transports back to that same location after the ministry.

Again, the Church relies on Hobby Lobby to note that protecting religious freedom guaranteed by RLUIPA may require the government to take action and to bear the cost of that action:

[B]oth RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.

The Ninth Circuit heard oral argument in this matter on February 2, 2015. A video of the hearing is available here. The Church’s brief is available here.