FILED

NOT FOR PUBLICATION

JAN 17 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PENTECOSTAL CHURCH OF GOD, No. 18-15788 DBA Great Life Church; LARRY SPIVEY, Pastor, D.C. No. 3:16-cv-00400-LRH-WGC

Petitioners-Appellants,

MEMORANDUM*

v.

DOUGLAS COUNTY; DOUGLAS

COUNTY COMMISSIONERS,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Argued and Submitted December 5, 2019 San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,** Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, Senior District Judge for the Central District of California, sitting by designation. Pentecostal Church of God (“the Church”) and its pastor, Larry Spivey,

appeal the district court’s order affirming Douglas County’s denial of a special use

permit application sought by the Church. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

The Church filed a petition for judicial review of the denial by the Board of

County Commissioners (“Board”) in Nevada state court. See NEV. REV. STAT. §

278.3195(4). The case was removed to federal court. The Church argues that the

Board’s decision to deny its permit was not supported by substantial evidence, as

required by Nevada law. The Church further argues that the County violated the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by imposing a

substantial burden on its religious exercise, and that the County’s decision violated

the Church’s rights to substantive due process as well as to equal protection under

the federal Constitution.

After the appellate briefs were filed, the Church sold the underlying property

in this action and received design review approval for a project at a different

location. We GRANT the County’s motions for judicial notice of these facts [Dkt.

Entries 33, 35].

Because of these recent events, the Church’s request for injunctive relief is

moot. We address the Church’s claims only for the purpose of determining

2 damages. See NEV. REV. STAT. § 278.0233 (damages available for agency actions

that improperly limit or condition use of property); Centro Familiar Cristiano

Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1169 (9th Cir. 2011) (damages

available for RLUIPA violations); 42 U.S.C. § 1983 (damages available for

constitutional violations). Although neither party filed a dispositive motion below,

we construe the district court’s order as granting summary judgment to the County

on the Church’s RLUIPA and federal constitutional claims. See FED. R. CIV. P.

12(d). We review de novo the district court’s denial of the Church’s legal claims.

See Guru Nanak Sikh Soc. v. Cty. of Sutter, 456 F.3d 978, 985 (9th Cir. 2006).

1. For the Church’s state-law claim, we review the administrative record

to determine whether substantial evidence supports the Board’s decision. See Kay

v. Nunez, 146 P.3d 801, 805 (Nev. 2006). “[S]ubstantial and specific” public

opposition can constitute substantial evidence upon which a local government can

base its decision to deny a request for a special use permit. City of Las Vegas v.

Laughlin, 893 P.2d 383, 385 (Nev. 1995). Such public opposition was expressed to

the Board and formed the basis of its decision. We will not substitute our judgment

for the Board’s. See City of Reno v. Citizens for Cold Springs, 236 P.3d 10, 15–16

(Nev. 2010).

3 2. To establish an RLUIPA violation, the Church must first show that the

implementation of a land use regulation imposed a “substantial burden” on its

religious exercise. See 42 U.S.C. § 2000cc(a)(1); see also Int’l Church of

Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011)

(holding that a “substantial burden” must be “oppressive” to a “significantly great

extent”) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,

1034 (9th Cir. 2004)); San Jose, 360 F.3d at 1034 (holding that a “substantial

burden” must “impose a significantly great restriction or onus upon such

exercise.”). According to the record, the Board’s decision was based on

neighborhood compatibility and traffic concerns, not potential religious use of the

property. There is no evidence that the Church “has no ready alternatives,” or that

alternatives required “substantial delay, uncertainty, and expense.” Foursquare

Gospel, 673 F.3d at 1068. There is likewise no adverse “history” behind the

Church’s application, the denial, or the proceedings leading up to it. See Guru

Nanak, 456 F.3d at 989. Indeed, the record now shows quite the opposite. The

Church has not shown its religious exercise was substantially burdened.

3. The Church brings its equal protection claim under a class-of-one

theory. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To succeed

on such a claim, the Church must show that the Board “(1) intentionally (2) treated

4 [it] differently than other similarly situated property owners, (3) without a rational

basis.” Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). We hold

that the Church has not met the second prong. The record does not show that other

churches in the County are in fact similarly situated to the Church.

4. To succeed on its substantive due process claim, the Church must show

“as a threshold matter” that the County deprived it of a “constitutionally protected

life, liberty or property interest.” Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir.

2008). To have a constitutionally protected property interest in a government

benefit such as a permit, the Church must have a “legitimate claim of entitlement to

it” created by a source such as state law that “imposes significant limitations on the

discretion of the decision maker.” Gerhart, 637 F.3d at 1019. Douglas County

Code § 20.12.020 does not significantly limit the discretion of the Board in

deciding an appeal from a special use permit denial within the meaning of

substantive due process doctrine.

AFFIRMED.

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