federal court documents: church sues mountain home, id for violation of religious rights

8/6/2019 Federal Court Documents: Church Sues Mountain Home, ID for Violation of Religious Rights

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GIVENS PURSLEY LLP

Gary G. Allen, [email protected] Bar No. 4366601 W. Bannock

Boise, Idaho 83702T: 208-388-1200F: 208-388-1300

MAUCK & BAKER, LLCJohn W. Mauck, Esq.*[email protected] Bar NO. 1797328Noel W. Sterett, Esq.*[email protected] Bar NO. 6292008

1 N. LaSalle Street, Suite 600Chicago, IL 60602T: 312-726-1243F: 312 726-1039

Attorneys for Plaintiff*Pending AdmissionPro Hac Vice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

NO LIMITS CHRISTIAN MINISTRIES, Inc.,)an Idaho church, individually )and in its capacity as representative )of certain individual members, )

)Plaintiff, )

)v. ) Civil Case No.

)CITY OF MOUNTAIN HOME, BONNIE ) COMPLAINT FOR EQUITABLE ANDHARPER, RUSS ANDERSON, GEOFF ) MONETARY RELIEFSCHROEDER, ALAIN ISAAC, and )JOHN/JANE DOES 1-10 in their )official and individual capacities, ) Demand For Jury Trial

)Defendants. )

_____________________________________

Case 1:11-cv-00255-EJL Document 1 Filed 05/31/11 Page 1 of 36


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Plaintiff, No Limits Christian Ministries, Inc., an Idaho church, individually and in its

capacity as representative of certain individual members, brings this action for declaratory

judgment, temporary restraining order, preliminary and permanent injunction and damages

arising from the Defendants discriminatory and unequal treatment of its religious assembly and

hereby alleges the following:

BACKGROUND AND PARTIES

1. Plaintiff, No Limits Christian Ministries (may be referred to hereafter as NLCM

or the Church), is an Idaho church that has been barred by the City of Mountain Home, Idaho

(the City) from exercising its rights to assemble for worship in its leased space at 535 N. Main

St., Mountain Home, Idaho 83647 (the Property) in violation of itsFirst Amendmentrights to

the free exercise of religion and freedom of speech and assembly; itsFourteenth Amendment

rights to equal protection under the law; its parallel rights under the Religious Land Use and

Institutionalized Persons Act, 42 USC 2000cc, et seq. (RLUIPA), the Idaho Religious

Freedom Act,Idaho Code 73-402, and the Idaho Constitution.

2. No Limits Christian Ministries was founded in 2010 when Clark D. Williams, Sr.,

an ordained pastor and a licensed Christian counselor, and his wife Dana Williams began

meeting with people at their home for times of bible study, worship, counseling, and prayer. The

purpose of the meetings was to discover and exalt the hope and life found in Jesus and to counsel

those seeking marital, familial, and financial peace. Exhibit A, Declaration of Pastor Clark D.

Williams, Sr. (Williams Dec.) 1-3.

3. After only a couple of months, the Williams home could no longer accommodate

the number of people coming to the meetings, so in March 2010, Pastor Williams began

searching for a temporary location where they could have an office for counseling and space for



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the growing congregation to meet and worship God until a more permanent space could be

found. Id. at 4.

4. At the time, Pastor Williams did not know that Mountain Homes Zoning Code

did not permit a church use as of right in any of its zoning districts. Id. at 5;see Code

Chapter 4, 9-4-4: Land Use Chart attached as Exhibit B.

5. In March 2010, NLCM began renting the Odd Fellows Hall located at 155 N 3rd

E St, Mountain Home for limited Sunday and Tuesday use and continues to meet there for

worship, which is on information and belief an accessory use of the building. Ex. A, Williams

Dec. at 6.

6. NLCM, now a congregation of about 60-70 people, is predominantly African-

American and includes many military families living in and around Mountain Home and the

United States Air Force base located there. Id. at 7.

7. Meeting at the Odd Fellows Hall and lacking a permanent meeting location

effectively precludes or substantially burdens the religious exercise of the NLCM congregation

in the following ways (Id. at 8):

i. NLCM is only able to use the space on Tuesdays and Sundays;

ii. Sunday services are from 11:00 a.m. to 1:00 p.m.;

iii. Seating capacity is limited to 60 people;

iv. NLCM cannot conduct its Sunday service in the same manner as it would

in its own space at 535 N. Main St.;

v. NLCM lacks the freedom to hold special prayer meetings, singing and

musical performances, outreach functions, and social gatherings of the

congregation;



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vi. Odd Fellows Hall is not suitable for religious ceremonies such as

weddings, baptisms, and memorial services;

vii. Odd Fellows Hall precludes NLCMs ability to provide adequate nursery

and childrens ministry services during worship because it is a temporary

location and not designed to accommodate such services. As a result,

parents and families who attend NLCM cannot fully cooperate in the

worship service or be ministered to or have their children given the level

of teaching and support in a child-friendly atmosphere NLCM feels called

to provide. At Odd Fellows Hall, the children must be in the church

service along with the adults, resulting in numerous interruptions and

distractions;

viii. NLCM is faced with the real possibility of losing those families and

possible new members because of NLCMs inability to provide such

childcare at Odd Fellows Hall;

ix. NLCM is unable to use expressions of faith through decoration because it

cannot affix items on the walls at Odd Fellows Hall;

x. NLCM cannot grow;

xi. NLCM cannot provide regular counsel at this building;

xii. Odd Fellows Hall is old and falling apart. People are afraid of injury and

concerned for their safety. During the Fall of 2010, a ceiling tile fell on

one of the members;

xiii. The building leaks when it rains or snows;

xiv. The building is bug infested with ants and termites coming out of walls;



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xv. On street parking is hard to come by because the Catholic church around

the corner takes the little parking that is available; and

xvi. Some people are not comfortable worshiping in the same building along

with different spiritual groups and fraternities (Mason's, Odd Fellows,

etc.) and therefore, they will not come to the temporary location.

xvii. NLCM has to break down and set-up each time to have service which

wears on the members and causes damage to equipment.

8. NLCM is registered as a not-for-profit organization under the laws of Idaho which

operates as a church, and is tax-exempt pursuant to IRS Code 501(c)(3). Id. at 9.

9. In July 2010, the NLCM found the Property which is owned by the Salvation

Army, was vacant, and once housed the Salvation Army Thrift Store,Id. at 10, as shown in the

following two photos (the first of which shows the Google Aerial image of the Property and

the second of which shows Google street-view of the property looking East from N. Main St.:



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10. Defendant, the City of Mountain Home, Idaho, is a public entity and a municipal

organization existing and operating under the laws of Idaho, whose principal business address

160 South 3rd East, Mountain Home, ID 83647. The City is sued for its facially illegal zoning

code and for the official actions of its employees, staff, agents, and the City Council which were

done under the color of state law and violated the Churchs clearly established federal rights.

11. Defendants RUSS ANDERSON, GEOFF SCHROEDER, and ALAIN ISAAC are

residents of Idaho who serve on the City Council of Mountain Home and are sued in their

individual capacities for violating Plaintiffs clearly established rights by voting, in their

administrative1

1 InKaahumanu v. County of Maui, Ninth Circuit determined that Council members actiondenying a conditional use permit was administrative rather than legislative in nature, andtherefore not entitled to legislative immunity. 315 F.3d 1215, 1219 (9th Cir. 2003).

roles, to deny NLCM a conditional use permit for its religious assembly.



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12. Defendant BONNIE HARPER is the City Planner for Mountain Home and is sued

in her individual capacity for violating Plaintiffs clearly established rights by going outside the

scope of her duties to actively oppose NLCMs efforts to reach agreement with neighboring

property owners for parking.

13. Defendants ANDERSON, SCHROEDER, ISAAC, and HARPER, along with

John/Jane Does 1-10 are municipal officials, employees, or independent contractors of Mountain

Home who, acting under color of state law, caused the deprivation of the Churchs clearly

established federal rights. They are sued regarding the as applied challenges of this Complaint

and not the facial challenges to the Code.


John/Jane Does 1-10 have conspired with each other and/or the municipality to violate the civil

rights of the Church under RLUIPA and the United States Constitution by treating the Church in

a discriminatory fashion and by creating undue burdens, expenses, delay, and uncertainty in the

Churchs efforts to use the Property for religious assembly and exercise.


John/Jane Does 1-10 knew or should have known that their actions violated the Churchs clearly

established federal rights for the following reasons:

i. Generally, they are presumed to know the law as City Officials;

ii. Specifically, they are charged with knowing zoning and land use law in

their oversight and application of Mountain Homes zoning;

iii. The Supreme Court precedents ofCity of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432 (1985) and Schad v. Borough of Mount Ephraim, 452

U.S. 61 (1981) were established over 25 years ago;



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iv. RLUIPA was passed over ten years ago in 2000.

FURTHER ALLEGATIONS OF FACT

Unlawful Opposition to Religious Activity In the Building Permit and Occupancy Process

16. NLCM and its members hold sincerely held religious beliefs which compel them

to conduct the following religious ministries and speech activity (Id. at 13):

i. weekly assembly of the congregation to worship (Hebrews 10:25);

ii. weekly preaching, including speech relating to personal morality, God,

social, and cultural issues (2 Timothy 4:2);

iii. pastoral counseling for the disturbed, lonely and bereaved;

iv. prayer meetings (Acts 1:13-14);

v. singing and musical performances (Psalms 81:1-2);

vi. baptisms, weddings, funerals, and communion (Matthew 28:19; Luke

22:19);

vii. Bible studies;

viii. nurseries or Sunday school for infants and toddlers;

ix. youth activities, including games and sports;

x. social gatherings such as church dinners;

xi. service projects for members of the congregation, the poor, and the

general community, and seniors groups (James 1:27);

xii. expression of faith through the display of signs, crosses, paintings,

banners, or decorations;

xiii. evangelism - sharing the Christian message and encouraging others to

believe in Jesus the Messiah, particularly those who visit their church meetings;



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xiv. financial giving and fundraising events to support salaries, building costs,

the poor, and ministries for members of the congregation;

xv. meeting in a more permanent location to proclaim the Gospel message;

xvi. feeding and/or ministering to the homeless;

xvii. house a food pantry; and

xviii. host alcohol and drug recovery meetings (Celebrate Recovery).

17. The other properties NLCM found on the market in Mountain Home were asking

$1500 to $3600 a month for 2 to 3 times less space and did not include an option to purchase or

right of first offer to purchase. The other properties were too expensive for NLCM and/or

inadequate for NLCMs ministry needs. Ex. A, Williams Dec. 11.

18. On or about November 4, 2010, the Church successfully negotiated a three year

lease with the Salvation Army for the Property with a right of first offer to purchase at the end of

the term. Ex. A, Williams Dec. 12.

19. The Church seeks to utilize the existing improvements on the Property in such a

way that would accommodate its religious assembly and ministries in furtherance of the Church

and its members sincerely held religious beliefs which motivate them to preach the Gospel of

Jesus the Messiah, worship together, minister to others, and share their faith with others in and

around Mountain Home. Id. at 14.

20. On or about November 15, 2010, Pastor Williams applied for a building permit to

allow NLCM to remodel the premises to accommodate the counseling ministry and was

informed that no religious services could be conducted at the Property without a Conditional Use

Permit was approved. Id. at 15.



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21. Once NLCM had a building permit, they immediately set to work repairing and

renovating the premises and expended approximately $10,000 in the process.Id. at 16.

22. NLCM submitted an architectural drawing of how the property would be set up,

with offices, and the largest room would be the multipurpose room, for conferences and

eventually the sanctuary, once a CUP was granted.Id. at 17.

23. On or about November 22, 2010, Michael McCain, the Citys primary Building

Official conducted an initial inspection of the Property and informed Pastor Williams both orally

and in writing that No religious service could be held at this location before a Conditional Use

Permit was approved and if any services of this kind were held the Certificate of Occupancy

would be revoked. See Id. at 18; Inspection History Report For Permit: 379 attached as

Exhibit C.

24. Pastor Williams had explained to Mr. McCain and City Planner Bonnie Harper

that his counseling ministry entailed the use of the multi-purpose space available in the building

for group counseling sessions including sessions entitled Financial Peace, group sessions using

Family Life resources for marriage and family counseling, and even rallies for men as part of the

Men At The Cross discipleship program. Ex. A, Williams Dec. at 19.

25. After being informed of the nature of his counseling, Mr. McCain warned Pastor

Williams that he could not use the multi-purpose space room for groups and could only counsel

one or two people at a time because that is what he considered counseling to be and threatened

Pastor Williams with revocation or denial of a Certificate of Occupancy if NLCM did not

comply.Id. at 20.

26. City Planner Bonnie Harper of the Planning and Zoning Department also

informed Pastor Williams of the same restrictions and penalty for allowing religious assembly



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use and activity at the Property without a Conditional Use Permit (CUP) from the City

Council.Id. at 21.

27. Mr. McCain again inspected the property on January 19, 2011 and noted a

number of items that needed to be corrected before a certificate of occupancy could be issued.Id.

at 22.

28. Within about nine days, NLCM had corrected all but two of the items and on

January 28, 2011, Mr. McCain re-inspected the Property and issued NLCM the Certificate of

Occupancy attached as Exhibit D which allows the building to be used for Counseling and

notes that the Occupant Load is 290. see also Ex. C.

29. Building Official Michael McCain issued a building permit (no. 379) in

November 2010 to allow NLCM to renovate the property on the express condition that no

religious services or activities would be held at the Property without a CUP. Ex. A, Williams

Dec. at 24; Ex. D.

Discriminatory Zoning and Burden of the CUP Requirement on Religious Assembly

30. Indeed, Mountain Homes Zoning Code (the Code) totally excludes religious

assemblies from all of its zoning districts. Churches2

2 The Code defines CHURCH/RELIGIOUS FACILITIES as [a] building or structure, orgroups of buildings or structures, which by design and construction are primarily intended for theconducting of organized religious services and/or a household unit for persons employed in thebuilding. Code Chapter 3, 9-3-2: Definitions.

are not specified as a permitted use under

any article or section. Code Chapter 4, 9-4-4: Land Use Chart attached as Ex. B . In order to

locate at the Property which is located in a C-3 (General Business) zone, the Church must apply

for and obtain from the City Council a CUP. see City of Mountain Home Zoning Map attached

as Exhibit E (property is located in most westward district in yellow which the legend identifies

as C-3 General Business).



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31. To obtain a conditional use permit, the Code on its face asserts that the Church

(and all other CUP applicants) has the burden to prove that its use at the proposed location:

***

A. Will, in fact, constitute an allowed conditional use in that zone, asdetermined by the use chart in chapter 4 of this title; or is a legal existingnonconforming land use or structure;

B. Will be in accordance with goals and objectives of the Mountain Homecomprehensive plan and with all the applicable provisions of this zoningordinance;

C. Will be designed, constructed, operated and maintained to be harmoniouswith the existing or the intended character of the general vicinity and that

such use and/or expansion will not change the essential character of thesame area;

D. Will not be hazardous or disturbing to existing or future neighboring uses;

E. Will be served adequately by existing essential public facilities andservices such as highways, streets, schools, police and fire protection,drainage structures, refuse disposal, water and sewer or that the personresponsible for the establishment of the proposed conditional use shall beable to provide adequately any such services;

F. Will not create excessive additional requirements at public cost for publicfacilities and services and will not be detrimental to the economic welfareof the community;

G. Will not involve uses, activities, processes, materials, equipment orconditions of operation that will be detrimental to any persons, propertyor the general welfare by reason of the environment, or excessiveproduction of traffic, noise, smoke, fumes, glare, or odors;

H. Will have vehicular approaches to the property which shall be so designedas not to create an interference with traffic on surrounding public streets;and

I. Will not result in the destruction, loss or damage of a natural or scenicfeature of major importance.

Code Chapter 18, 9-18-8: Conditional Uses, attached hereto as Exhibit F.



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32. In addition, as a conditional use the Church would be subject to the Mountain

Home Councils power and discretion to prescribe and require additional conditions, bonds,

studies, reports, and safeguards. A failure to comply with such additional restrictions could

result in the loss of the conditional use permit. Id.

33. In further violation of the right to equal protection of the law, the Code also

permits, as of right (does notrequire a CUP), the following non-religious assembly uses in the

same C-3 zone:

A. Amusement center/indoors

B. Art galleries

C. Clubs and lodges (profit and nonprofit)

D. Classes/piano, dance, ceramics, and craft for more than 5 people

E. Exercise/health spas

F. Bowling alleys

G. Hotel/motels

H. Enclosed recreation facilities

I. Trade Schools

J. Senior citizen centers

Code Chapter 4, 9-4-4: Land Use Chart attached as Ex. B

Opposition to Religious Activity In The Conditional Use Permit Process

34. Despite the unequal treatment and unreasonable limitations imposed by the

Mountain Home Code on religious assemblies and City Officials unlawful opposition to its

religious activity, NLCM applied on or about December 6, 2010, for a CUP to conduct religious

assembly at that the Property. Ex. A, Williams Dec. at 25; CUP application attached as Ex. G.



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35. On February 7, 2011, Mountain Homes Planning and Zoning Board (the

Board) heard NLCMs application for a CUP for the Church use of the premises, and in a split

vote, the Board voted to recommend that the City Council approve a CUP for NLCMs religious

assembly and indicated orally that the Board was going to recommend some conditions to the

Council primarily related to parking and sewage. Id. at 26.

36. The Board did not provide NLCM with a comprehensive list of those conditions

before the application was heard by the City Council at a public hearing on February 14, 2011.

Id. at 27.

37. Prior to the City Council meeting on February 14, 2011 meeting, Pastor Williams

received word that City Planner Bonnie Harper actively called and harassed neighboring

businesses that were considering volunteering their parking lots for NLCMs use. The store

manager for Airmen Pawn Shop located across the street from the Church submitted a signed

agreement to us allowing NLCM to use its parking lot even though Ms. Harper called the

manager demanding to know Why are you letting those people use your parking lot, they are

going to be parking all over the place?Id. at 28.

38. On information and belief, the City Planner also put pressure on Albertsons

grocery store not to agree to let NLCM use its available parking. Id. at 29.

39. To the issue of parking, the Code provides that places of private assembly have 1

parking space per each 4 seats or 1 for each 28 sq. feet of the largest multipurpose, gym or

auditorium, whichever is greater. For some non-religious assembly uses such as theaters only 1

seat per every 5 seats is required regardless of square footage.

40. In NLCMs case the City determined that NLCM had to provide over 70 parking

spots even though its congregation is currently only 60-70 people. On information and belief,



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the City instead calculated NLCMs parking obligation from what his estimation that the

buildings square footage allows for a maximum capacity of 282 persons. Id. at 30.

41. The City Council first considered Plaintiffs application on February 14, 2011, but

since NLCM did not have a comprehensive list of preconditions to meet, Councilwoman Alain

Isaac and Councilman Schroeder made a motion (that was passed) to send the application back to

the Planning & Zoning Board until all the conditions were met. See Minutes of the February 14,

2011 City Council meeting attached hereto as Exhibit H.

42. As a follow up to the City Council meeting on February 14, 2011, City Planner

Bonnie Harper and Building and Zoning Official Michael F. McCain wrote the letter attached as

Exhibit I to Pastor Williams regarding his application and what the Council was requiring of

NLCM.

***

1. Provide a Parking Lot Joint Use Agreement from at least one neighboringproperty owner to fulfill the forty-eight (48) off-street parking spacedeficiency for a total of 71 parking spaces.

2. Provide verification that the building has a functioning septic tank or thatit is connected to the Citys sewer line.

3. Make a request to Idaho Transportation Department to repaint thecrosswalks on North Main St.

4. Submit a landscape plan to show how NLCM will make improvements tothe North Main St. frontage and showing the location of the trash bin andhow it will be screened from view.

***

43. To the issue of the septic system, NLCM showed the City Council that its current

septic tank is operational and suitable for a congregation NLCMs size, however the Citys



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asserted 282 occupancy projection requires NLCM to pay to have the sewer connected to city

sewage. Ex. A, Williams Dec. at 33.

44. Despite the opposition, NLCM went the extra mile and persevered in reaching

agreements with neighboring property owners to try meet the Citys parking demands (see

attached as Exhibits J & K), hired Bowman plumbing to inspect, purge, and verify the septic

tank was working properly, and received a letter from stating that the crosswalk as shown in the

Google street-view image below would be repainted (Exhibit M) and had a sufficient

landscape plan. Ex. A, Williams Dec. at 34.

45. Between February 17, 2011 and April 1, 2011, Pastor Williams was in regular

contact with the Union Pacific Railroad and the Salvation Army in order to work out the parking

issues and sewage connection.Id. at 35.

46. NLCM retained Corder LLC to connect the Property to the City sewer.Id. at 36.

47. On April 14, 2011, NLCMs spokesperson, former Mayor Joe McNeal,

approached the current mayor, building official, and city planner to review everything NLCM



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had accomplished in resolving the issues, and attempted to get us access to the new building for

our Easter/Passover service, but we were denied. Id. at 37.

48. NLCM appeared again before the Planning & Zoning Board on May 2, 2011, and

the first question NCLM received from the Board was essentially, Why are you all back here?

We approved you the first time. Id. at 38.

49. At the end of the meeting, all members of the Planning & Zoning Board voted

Yes to recommend to the City Council issuance of a CUP and from Pastor Williams

perspective, the Board appeared pleased with the parking arrangements and the progress on the

sewage. Id. at 39.

50. To appear before the City Council the following week the City, without legal

authority, had required NLCM to provide notice in excess of the Code requirement to property

owners within a 600 ft. radius of the property as opposed to the 300 ft. radius as required by the

code. Ex. A, Williams Dec. 40; Code Section 9-18-10 attached as Exhibit L.

51. After NLCM provided the requested notice, the City Council scheduled another

public hearing on the application on May 9, 2011. Ex. A, Williams Dec. 42

52. In addition, at the Citys request, NLCM provided the City with a letter, attached

as Exhibit N, that it would waive its right to protest any future commercial activities relating to

the sale or consumption of alcohol in the downtown area. Id. at 41.

53. At the public hearing, NLCM and public were given the opportunity to testify

concerning the application. No one from the public ever spoke in opposition to NLCMs

application at the City Council or at the Planning & Zoning Board. Former Mayor Joe McNeal

spoke in favor of our application.Id. at 43.



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63. Mountain Home, by force of its zoning code and in violation of both federal and

state law, is denying the Church the use of property which it has contracted to lease for religious

exercise and assembly. In doing so, Mountain Home is inflicting irreparable harm on the

congregation. The Church accordingly challenges Mountain Homes zoning provisions both

facially and as-applied to its religious exercise, speech, and assembly.

JURISDICTION AND VENUE

64. This action arises under the United States Constitution, particularly the First and

Fourteenth Amendments; and under federal law, particularly 28 U.S.C. 2201, 2202; 42 U.S.C.

1983, 1988; and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C.

2000cc et seq. (RLUIPA).

65. This Court has original jurisdiction over Plaintiffs federal claims by operation of

28 U.S.C. 1331 and 1343.

66. This Court has authority to issue the requested declaratory relief under 28 U.S.C.

2201.

67. This Court has authority to issue the requested injunctive relief under Fed. R. Civ.

P. 65 and 28 U.S.C. 1343(3) and the requested damages under 28 U.S.C. 1343(3).

68. This Court is authorized to award attorneys fees under 42 U.S.C. 1988.

69. This Court is authorized to grant the appropriate relief that the Plaintiff requests

under RLUIPA, 42 U.S.C. 2000cc-2.

70. This Court may exercise supplemental jurisdiction over Plaintiffs related State

Claims by operation of 28 U.S.C. 1367.

71. Venue is proper under 28 U.S.C. 1391 in this District because this claim arose

here, because Defendant is situated within the District, because the material events occurred



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here, and because the law alleged to be facially illegal is being enforced in the City of Mountain

Home, Idaho.

ALLEGATIONS OF LAW

72. Each and all of the acts alleged herein, including any decision to deny the Church

a use conditional use permit, were done by the Defendants Mountain Home, members of the City

Council, and John/Jane Does 1-10 under the color and pretense of state law, statutes, ordinances,

regulations, customs, usages, and policies.

73. Mountain Home, all individual defendants, and John/Jane Does 1-10 have

enforced the challenged Code against the Plaintiff.

74. The Churchs religious worship, religious expression, and religious assembly are

protected by theFirstandFourteenth Amendments to the United States Constitution.

75. Concomitantly, the use of a facially illegal zoning ordinance or the illegal

application of a facially legal ordinance to deny the Church use of the Property for protected

religious worship, religious expression, religious assembly, and religious association is a

violation of theFirst Amendmentand theFourteenth Amendmentto the United States

Constitution, and RLUIPA.

76. Unless and until the Mountain Homes interference of the Churchs use and

ministries are enjoined, the Church will suffer and continue to suffer irreparable harm to its

federal constitutional and statutory rights, as well as damages.

77. The Church has no adequate or speedy remedy at law to correct or redress the

deprivations to their constitutional and civil rights.

78. Mountain Home will suffer no harm if injunctive relief is granted to the Church.

79. The harm to the Church far outweighs any harm to Mountain Home.



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80. The public interest is benefited when constitutional and civil rights are protected.

81. The Church alleges the following twelve causes of action against Defendants.

FIRST CAUSE OF ACTION

CITYS VIOLATION OF RLUIPA EXCLUSION PROVISION ORIN THE ALTERNATIVE THE UNREASONABLE LIMITATION PROVISION(FACIAL CHALLENGE TO MOUNTAIN HOME CODE)

82. The allegations contained in all preceding paragraphs are incorporated here by

reference.

83. RLUIPA defines the phrase religious exercise to include the use, building, or

conversion of real property for the purpose of religious exercise . . . . 42 U.S.C. 2000cc-

5(7)(B).

84. RLUIPA Section 2(b)(3) Exclusions and Limits provides that:

No government shall impose or implement a land use regulation that:(A) totally excludes religious assemblies from a jurisdiction; or(B) unreasonably limits religious assemblies, institutions, or structureswithin a jurisdiction.

85. RLUIPA was enacted in 2000 after three years of Congressional hearings which

produced a record of massive evidence that the core First Amendment right to assemble for

religious purposes and the indispensable adjunct right of a Church to build, buy or rent a

physical space adequate to their needs and consistent with their theological requirements is

frequently violated. 146 CONG. REC. S7774-01, S7774.

86. The Congressional record revealed that:

Churches in general, and new, small, or unfamiliar churches in particular, arefrequently discriminated against on the face of zoning codes and also in the highlyindividualized and discretionary processes of land use legislation. Zoning codesfrequently exclude churches in places where they permit theaters, meetings halls, andother places where large groups of people assemble for secular purposes. Or thecodes permit churches only with individualized permission from the zoning board,and zoning boards use that authority in a discriminatory ways. Id.



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87. Congress found the discrimination often lurks behind such vague and universally

applicable reasons as traffic, aesthetics, or not consistent with the citys land use plan. Id.

88. On its face, Mountain Homes Code totally excludes religious assemblies from its

entire jurisdiction.

89. The legislative history of RLUIPA further reveals that:

Section 2(b)(3), on exclusion or unreasonable limitation of religious uses, enforcesthe Free Speech Clause as interpreted in Schad v. City of Mount Ephraim,N.J., 425U.S. 61 (1981) which held that a municipality cannot entirely exclude a category offirst amendment activity. ... Section 2(b)(3) enforces the right to assemble forworship or other religious exercise under the Free Exercise Clause, and the hybridfree speech and free exercise right to assemble for worship or other religious exercise

underSchadand [Employment Division v. Smith, 494 U.S. 872 (1990)]. 146 CONG.REC. at S7776.

90. By failing to allow churches as a permitted use anywhere in its jurisdiction, the

City of Mountain Home has entirely excluded a category of first amendment activity, and in the

alternative, has unreasonably limited the Churchs hybrid free speech and free exercise right to

assemble for worship.

91. Mountain Homes Code requirement that religious assembly uses, like the

Church, go through the costly, discretionary and arbitrary conditional use permitting process

selectively imposes an unreasonable limitation on the Church that is not imposed on other non-

religious assembly uses.

92. By forcing the Church to go through the costly, discretionary, and arbitrary use

conditional use permit application process and to have to wait an unspecified amount of time to

learn whether the application would be approved or denied by a discretionary board of decision

makers, Mountain Homes Code precludes the Church and its members from preaching the

Gospel of Jesus the Messiah, worshipping, ministering to others, and sharing their faith with



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others at the Property, and thereby places an unreasonable limitation on their sincerely held

religious beliefs.

93. Mountain Home lacks a rational basislet alone a compelling interestthat

would justify their denial of the Churchs use of the Property or a conditional use permit that

would allow for the Church to use the Property as a church.

94. Mountain Home will be unable to demonstrate that preventing the use of the

Property as a church will be the most narrowly tailored alternative to achieving any

governmental interest it may claim to have.

95. Freely permitting non-religious assembly activities as of right in the C-3 zone but

requiring a conditional use permit for similar group activities that are religious in nature is an

unreasonable limitation on churches like the Plaintiff.

96. Mountain Homes Code therefore violates Section 2(b) (3)(A) and 2(b)(3)B of

RLUIPA.

WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in

the Prayer For Relief.

SECOND CAUSE OF ACTION

CITYS VIOLATION OF RLUIPA EQUAL TERMS PROVISION(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOMES CODE)


reference.

98. Section 2(b)(1) of RLUIPA prohibits Mountain Home from treating a religious

assembly use less favorably than a non-religious assembly use:

A. Equal TermsNo government shall impose or implement a land use regulation in a mannerthat treats a religious assembly or institution on less than equal terms with anonreligious assembly or institution.



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99. Examples of nonreligious assemblies that the legislative history identifies as

comparable to religious assemblies include banquet halls, clubs, community centers, funeral

parlors, fraternal organizations, health clubs,gyms,places of amusement, recreation centers,

lodges, libraries, museums, municipal buildings, meeting halls, and theaters. (italics added) H.

REP. 106-219 at 19 (July 1, 1999).

100. In Congregation Kol Ami v. Abington Twp., the District Court found that there can

be no rational basis to require a religious assembly to obtain special approval in a district where

nonreligious assembly uses are permitted as of right. 161 F. Supp. 2d 432, 434 (E.D. Pa. 2001).

101. Mountain Homes Code freely permits the nonreligious assembly uses listed

under paragraph 32 above. However, the Code prohibits the Church from using its property for

religious assembly unless and until Mountain Home gives it restricted and special permission by

way of a conditional use permit.

102. Mountain Homes Code through its CUP process permits its officials to make

individualized assessments, within the meaning ofEmployment Div. v. Smith, 494 U.S. 872,

884 (1990) and Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 537 (1993), of

the proposed uses of property within the City, including the Churchs property.

103. Mountain Home imposed and implemented a land use regulation treating the

Church on less than equal terms with non-religious assemblies, and in doing so violated RLUIPA

2(b)(1).



THIRD CAUSE OF ACTION

CITYS VIOLATION OF RLUIPA SUBSTANTIAL BURDEN PROVISION

(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)



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reference.

105. Section 2000cc (a)(1) of RLUIPA provides:

A. General rule.

No government shall impose or implement a land use regulation that imposes asubstantial burden on the religious exercise of a person, including a religiousassembly or institution, unless the government demonstrates that imposition of theburden on that person, assembly, or institution

(A) is in furtherance of a compelling governmental interest; and(B) is the least restrictive means of furthering that compelling

governmental interest.

106. Mountain Homes Code requiring religious assembly uses, like the Church, to go

through the costly, discretionary, and arbitrary use conditional use permit application process

selectively imposes a substantial burden on the Church that is not imposed on certain other non-

religious assembly uses.

107. The imposition by Mountain Home and its officials of conditional use permit

application requirements on the Church which resulted in incurred expenses of upwards of

$10,000.00 coupled with five months delay and burdens on the ministry such as those set forth in

paragraph 7 above created a substantial burden on the Church within the meaning of RLUIPA

2(a)(1).

108. By forcing the Church to go through the costly, discretionary, and arbitrary use

conditional use permit application process and to have to wait five months to learn whether the

application would be approved or denied by a discretionary board of decision makers, Mountain

Home and its Code are precluding the Church and its members from assembling together to hear

the preaching of the Gospel of Jesus the Messiah, to worship, to minister to others, and to share



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their faith with others at the Property (or at any other property in the jurisdiction), and are

thereby substantially burdening their sincerely held religious beliefs.

109. Mountain Home and its City Councils denial of NLCMs CUP application

constitutes a substantial burden on NLCMs religious exercise. See Guru Nanak Sikh Soc'y v.

County of Sutter, 456 F.3d 978, 985 (9th Cir. 2006).



FOURTH CAUSE OF ACTION

VIOLATIONS OF THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)


reference.

111. TheEqual Protection Clause of theFourteenth Amendmentto the United States

Constitution requires that the government treat similarly situated assembly uses equally.

112. Groups can assemble for educational, social, cultural, political, and recreational

purposes at a club, lodge, theater, senior citizen center, etc., without needing a conditional use

permit from Mountain Home, but if a principal use of the property as a Church is for religious

assembly purposes a conditional use permit is required.

113. The only reason the Churchs group activities are being treated more restrictively

is the religious content of its expression and assembly.

114. The use, in and throughout the Mountain Home Code, of the word Church to

regulate land uses so defined is a governmental regulation based upon religion. According to the

United States Supreme Court, religion is a suspect category when regulated by government

and a law that targets religious conduct for distinctive treatment or advances legitimate



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governmental interests only against conduct with a religious motivation will survive strict

scrutiny only in rare cases. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (U.S.

1993).

115. There is not a rational basislet alone a compelling governmental interestfor

the Code to permit non-religious assembly uses in the C-3 zones but forbid religious assembly

uses without a conditional use permit.

116. Mountain Homes Code therefore violates theEqual Protection Clause of the

Fourteenth Amendmentto the United States Constitution.

117. Defendants (ANDERSON, SCHROEDER, ISAAC, and HARPER) acted under

color of state law in such a manner that treated NLCM on an unequal basis in violation of

NCLMs clearly established rights under theEqual Protection Clause of theFourteenth

Amendmentto the United States Constitution.

118. Defendants actions deprived NLCM and the members of its congregation of

equal protection of the laws by using their actions and discretion to oppose NLCMs religious

assembly at the Property where nonreligious assemblies are permitted as of right.

119. Defendants actions in opposing and deny NLCM the right to assemble for

worship at the Property do not serve a compelling governmental interest, nor are they narrowly

tailored to achieve a compelling governmental interest



FIFTH CAUSE OF ACTION

CITYS VIOLATION OF THE RIGHT TO FREE EXERCISE OF RELIGION

UNDER THE UNITED STATES CONSTITUTION(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)



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reference.

121. Mountain Homes Code requirement that religious assembly uses, such as that of

the Church, go through the discretionary, costly, and arbitrary conditional use permit application

process infringes on the free exercise rights of the Church.

122. Mountain Homes Code prohibitions of a Church use at the Property has forced

the Church and its members to completely forego conducting religious exercises and practices at

the property the Church found to be adequate to their needs and consistent with their theological

requirements. 146 Cong. Rec. at S7774.

123. Mountain Homes Code restricts religious assembly uses because of their

religious motivation and/or character.

124. Mountain Homes Code selectively imposes burdens only on assembly uses that

are religious in motivation and/or character that it does not impose on many assembly uses which

are non-religious in motivation and/or character.

125. Mountain Homes Code infringes on the Churchs hybrid rights of free exercise,

freedom of assembly, freedom of association, and freedom of speech. See Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

126. Mountain Homes Code therefore violates theFree Exercise Clause of theFirst

Amendmentto the United States Constitution as incorporated and applied to the states through

theFourteenth Amendment.



SIXTH CAUSE OF ACTION



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INDIVIDUAL DEFENDANTS VIOLATION OF THE RIGHT TO FREE EXERCISE OF

RELIGION UNDER THE UNITED STATES CONSTITUTION


reference.


color of state law in such a manner that violated NLCM and its congregations clearly

established rights to free exercise of religion.

129. Defendants actions violated theFree Exercise Clause of theFirst Amendmentto

the United States Constitution as incorporated and applied to the states through theFourteenth

Amendment.



SEVENTH CAUSE OF ACTION

CITYS VIOLATION OF NLCMS RIGHT TO FREE SPEECH

UNDER THE UNITED STATES CONSTITUTION(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)


reference.

131. The Churchs religious speech activitiespreaching, singing, worship, prayer,

and teachingare protected under theFree Speech Clause of theFirst Amendment.

132. In prohibiting and/or unreasonably limiting, through its zoning law, the location

of religious organizations like the Church, the Mountain Home Code restricts the Churchs free

speech.

133. Mountain Homes ban of religious assembly uses is a content-based restriction on

speech because it restricts religious speech by prohibiting new churches from locating in the City



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and subjects the Churchs free speech to the highly discretionary conditional use permit process

which acts as a prior restraint on the Churchs speech.

134. Mountain Homes Code and actions that prohibit the Church from locating as of

right in any of its districts do not leave open ample alternative channels of communication and

does not qualify as a reasonable time, place, or manner restriction. See Grayned v. City of

Rockford, 408 U.S. 104, 116-117 (1971).

135. Mountain Homes Code is unconstitutionally overbroad because it sweeps within

its ambit protected First Amendment religious speech. See Schad v. Mount Ephraim,N.J., 425

U.S. 61, 75-76 (1981).

136. Mountain Homes Code operates as an impermissible prior restraint on speech,

granting overly broad discretion to decision-making officials to decide whether to exclude

religious uses, including but not limited to expressive assembly such as NLCMs worship

gathering.

137. Mountain Homes Code and actions chill the Churchs right to free speech.

138. The City lacks a compelling interest to justify its limitations on religious speech

through its Code and actions.

139. Mountain Home may not suppress protected speech absent a showing of a clear

and present danger of riot, disorder, or other immediate threat to public safety, peace, or order.

140. The Churchs religious use and speech in the C-3 zone (or in any other zoning

district of the City) does not implicate any threat to public safety, peace, or order, thereby

illustrating the Codes lack of narrow tailoring.



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141. Mountain Homes Code accordingly violates theFree Speech Clause of theFirst

Amendmentto the United States Constitution as incorporated and applied to the states through

theFourteenth Amendment.



EIGHTH CAUSE OF ACTION

INDIVIDUAL DEFENDANTS VIOLATION OF NLCMS RIGHT TO FREE SPEECH

UNDER THE UNITED STATES CONSTITUTION


reference.


color of state law in such a manner that violated NLCMs clearly establishedFirst Amendment

right to free speech.

144. Defendants actions deprived NLCM and the members of its congregation of their

right to expressive assembly by using their discretion to oppose NLCMs religious assembly at

the Property and deny NLCM the right to assemble for expressive worship at the Property.

145. Defendants demand that NLCM obtain a CUP prior to engaging in religious

assembly and worship at the Property serves as an unconstitutional prior restraint on free

exercise and speech.

146. Defendants actions were content-based speech restrictions in that they did not

permit NLCM to assemble for worship due to the religious nature of its assembly and message.

147. Defendants actions in opposing and deny NLCM the right to assemble for

worship at the Property do not serve a compelling governmental interest, nor are they narrowly

tailored to achieve a compelling governmental interest.



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NINTH CAUSE OF ACTION

VIOLATION OF IDAHOS RELIGIOUS FREEDOM RESTORATION ACT(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)


reference.

149. Chapter 4, Title 73 of the Idaho Code is not expressly titled the Idaho Religious

Freedom Restoration Act or IRFRA for short. However, the Idaho State Legislature refers to

this chapter as Idahos own RFRA in Paragraph 3 of the Statement of Purpose (RS 09829C1)

attached to Senate Bill No. 1394, Legislature of the State of Idaho, Fifty-fifth Legislature,

Second Regular Session (2000). The Act provides that:

***

(1) Free exercise of religion is a fundamental right that applies in this state, evenif laws, rules or other government actions are facially neutral.

(2) Except as provided in subsection (3) of this section, government shall notsubstantially burden a person's exercise of religion even if the burden results from a ruleof general applicability.

(3) Government may substantially burden a person's exercise of religion only if itdemonstrates that application of the burden to the person is both:

(a) Essential to further a compelling governmental interest;

(b) The least restrictive means of furthering that compelling governmentalinterest.

(4) A person whose religious exercise is burdened in violation of this section mayassert that violation as a claim or defense in a judicial proceeding and obtain appropriaterelief against a government. A party who prevails in any action to enforce this chapteragainst a government shall recover attorney's fees and costs.



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150. Mountain Homes Code and Defendants actions constitute a substantial burden

on the Church and its members exercise of religion in violation ofIdaho Code 73-402 (2011).


the Prayer For Relief below.

TENTH CAUSE OF ACTION

VIOLATION OF IDAHO CONSTITUTIONAL RIGHT TO FREE EXERCISE(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)


reference.

152. Mountain Homes Code and Defendants actions violated the Church and its

members exercise of religion in violation ofArticle I, 4 of the Idaho Constitution which

protects their right to exercise and enjoy their religious faith and worship and to not be denied

any civil or political right on account of their religious nature.



ELEVENTH CAUSE OF ACTION

VIOLATION OF IDAHO CONSTITUTIONAL RIGHT TO FREE SPEECH(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)


reference.


members freedom of speech in violation ofArticle I, 9 of the Idaho Constitution which

protects their right to free speech





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TWELFTH CAUSE OF ACTION

VIOLATION OF IDAHO CONSTITUTIONAL RIGHT TO FREE ASSEMBLY

(FACIAL AND AS APPLIED CHALLENGE TO MOUNTAIN HOME CODE)


reference.


members freedom of assembly in violation ofArticle I, 10 of the Idaho Constitution which

protects their right to assemble.



PRAYER FOR RELIEF

WHEREFORE, the Church respectfully prays that the Court:

A. Enter a Declaratory Judgment declaring that Mountain Homes requirement that

churches obtain a conditional use permit to locate in its C-3 districts, is void and unconstitutional

both on its face and as applied to the No Limits Christian Ministries;

B Enter a Declaratory Judgment declaring that by force of federal law, Churches are

entitled to equal treatment as a permitted use in C-3 districts generally and at 535 N. Main St.,

Mountain Hope, Idaho specifically;

C. Issue a preliminary and permanent injunction requiring the City to immediately

permit No Limits Christian Ministries to use the property at 535 N. Main St., Mountain Home,

Idaho as a church for religious assembly free from any restrictions of the Mountain Home

Zoning Code subject only to neutral health and safety laws;

D. Issue a preliminary and permanent injunction, enjoining the City, its officers,

agents, employees, attorneys and all other persons acting in active concert with it, from enforcing



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its Zoning Code to prevent or attempt to prevent the Church from using the property at 535 N.

Main St., Mountain Home, Idaho as a church for religious assembly;

E. Award compensatory damages in favor of No Limits Christian Ministries and the

individual members of the congregation against all defendants, jointly and severally, for all

damages sustained as a result of Defendants illegal code and Defendants actions which violated

clearly established law, in an amount to be proven at trial, including interest thereon;

F. Award compensatory damages in favor of No Limits Christian Ministries and the

individual members of the congregation against all defendants, jointly and severally, for the

burdens suffered as a result of the delay in not being able to use the property at 535 N. Main St.,

Mountain Home, Idaho for church purposes;

G. Award damages in favor of No Limits Christian Ministries and the individual

members of the congregation against all defendants, jointly and severally, for the violations of

the constitutional liberties No Limits Christian Ministries and the individual members of the

congregation;

H. Award the No Limits Christian Ministries its costs and expenses of this action,

including reasonable attorneys fees, pursuant to 42 U.S.C. 1988, and other applicable law;

I. Award punitive damages against the Individual Defendants and John/Jane Does 1-

10 jointly and severally in the amount of $10,000.00;

J. Retain jurisdiction of this matter as necessary to enforce the Courts orders; and

K. Grant such other relief as this Court deems appropriate.

///

///



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Respectfully submitted this 31st day of May, 2011.

Attorneys for Plaintiff:

/s/ Gary G. Allen

GIVENS PURSLEY LLPGary G. Allen, [email protected] Bar No. 4366601 W. BannockBoise, Idaho 83702T: 208-388-1200F: 208-388-1300

/s/ John W. Mauck

MAUCK & BAKER, LLC

John W. Mauck, Esq.*[email protected] Bar NO. 17973281 N. LaSalle Street, Suite 600Chicago, IL 60602T: 312-726-1243F: 312 726-1039

/s/ Noel W. Sterett

Noel W. Sterett, Esq.*[email protected] Bar NO. 62920081 N. LaSalle Street, Suite 600Chicago, IL 60602T: 312-726-1243F: 312 726-1039

*Petition For Admission Pro Hac Vice submitted concurrently.



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