Plaintiff Michael Salman wanted to hold Bible studies in his home and nothing, not even the prospects of a Phoenix poolmunicipal enforcement action, 60 days in jail, and $12,000 in fines would stop him.  In 2007, Salman’s neighbors complained that he was hosting large Bible studies in his home. The City sent several letters to Salman informing him that he was not allowed to establish a church within his home because it violated Phoenix’s building code.  After meeting with City officials to discuss the conflict, they reached an impasse.  Then, Salman built a 2,000 square foot “game-room” addition to his home and soon began hosting Bible studies there.

After expanding the space, Salman’s attendance rose from about 15 to 35 people. Unsurprisingly, the City prosecuted Mr. Salman for violating the building code.  Maricopa Superior Court later upheld a trial court’s finding of sixty-seven building and zoning code violations.

In his defense, Salman filed a 2011 complaint in Arizona District Court seeking a “Temporary Restraining Order (“TRO”) enjoining Defendants from implementing and enforcing the Codes and Ordinances against Plaintiffs to prohibit private worship, bible studies, and placement of a reader board with religious messages at their residence and from prosecuting, sentencing, arresting, or incarcerating Plaintiffs.”  Salman’s federal court case was dismissed, on the grounds that the state court was the proper forum to address his grievances.

Less than a year after Salman’s first complaint was dismissed from by the federal court, he filed the current action, Salman v. Phoenix, No. CV-12-01219.   The City moved to dismiss the case on the grounds that Salman was estopped from rearguing his case in federal court.  Salman most recently moved for leave to file a third amended complaint because discovery had revealed information “vital to the allegations” that would give him a federal right of action.

Salman’s federal claims were made pursuant to 42 U.S.C. § 1983 and RLUIPA.  He also claims that Phoenix’s building code is unconstitutionally vague.  Regarding Salman’s RLUIPA claim, the court found that Salman’s references to the building code failed to identify a portion of the code that could be regarded as a “land use regulation” as defined by RLUIPA.  See 42 U.S.C. § 2000cc-5(5) (defining “land use regulation” as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land.”).  Salman pointed to Building Construction Code § 110.1, entitled “use and occupancy.”  The court declined to conclude that a use and occupancy permitting requirement alone could trigger RLUIPA’s protections:

It simply establishes that a Certificate of Occupancy is a prerequisite for use or occupation, or a change in classification for some group of structures. This provision seems to “impose[] certain requirements before certain gatherings may take place (akin to a building or fire code).” (Doc. 73 at 12). In sum, nothing indicates that § 110.1 is a “land use regulation” governed by RLUIPA.

The court concluded that Salman’s efforts to amend his complaint were likely futile.  However, the court allowed Plaintiffs leave to file a motion to file a fourth amended complaint by Thursday, March 3, 2016. The court’s decision denying Plaintiffs’ Motion for Leave to file a Third Amended Complaint and Request for an Injunction is available here.

Photograph by flyshades, some rights reserved.