Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 1 of 22

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1 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 1 of 22 GERALD GAGLIARDI and KATHLEEN MacDOUGAL, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 9:16-cv MARRA/MATTHEWMAN v. Plaintiffs, CITY OF BOCA RATON, a Florida municipal corporation, and Defendant, CHABAD OF EAST BOCA, INC. and TJCV LAND TRUST, Intervenors. / DEFENDANT CITY OF BOCA RATON S MOTION TO DISMISS COMPLAINT WITH INCORPORATED MEMORANDUM OF LAW The City of Boca Raton (the City ), by and through undersigned counsel and pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, hereby moves to dismiss the Complaint for Declaratory Relief and Injunctive Relief, Damages and Demand for Jury Trial, filed by Gerald Gagliardi and Kathleen Macdougall (the Plaintiffs ). INTRODUCTION This case appears to be a challenge to the City of Boca Raton s good faith effort to assure that its zoning code treats religious and nonreligious assemblies consistently and in a manner that neither inhibits nor promotes religion. Plaintiffs, two Christian residents of the City, contend that the City violated the Establishment Clause of the First Amendment (and other provisions of the United States and Florida Constitutions) in several ways. First, Plaintiffs contend that the City committed a constitutional violation when, 8 years ago, it amended its Code of Ordinances so as to address places of public assembly in a consistent manner and expressly allow houses of worship in zoning districts that already allowed other places of public assembly. Next, it is

2 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 2 of 22 alleged that the City continued that constitutional violation when it allegedly had nonpublic discussions with Chabad of East Boca, Inc. ( Chabad ) and a property owner in connection with Chabad s efforts to build a religious center. The continuing violation allegedly concluded in 2015, when the City issued a development order (that included a height variance and a parking variance) 1 allowing the construction of a religious center. Under the facts alleged in the Complaint, however, neither the City s amendment to its zoning code nor its approval of Chabad s development for a religious center give rise to constitutional violations. Accordingly, none of these claims state a cause of action upon which relief can be granted and they should each be dismissed with prejudice. STATEMENT OF FACTS Although the Plaintiffs do not reallege and reincorporate the facts in each count, a sideby-side comparison reveals that the essential factual allegations of each count are functionally identical. Each facts section of the Complaint is divided into two subsections: The Violation and The Continuation. A. The Violation The Complaint describes Ordinance No (the Adopted Ordinance ), duly adopted by the City Council after four public hearings in 2008, as the violation. 1. Allegations regarding the violation. Plaintiffs allege that Chabad, in 2007, sought to purchase single family homes in the Golden Triangle area of the City, near Mizner Park, for religious purposes, but that opposition groups who were motivated by religious animus and a desire to protect Golden Triangle s residential quality opposed Chabad s efforts. ECF No. 1 (hereinafter, the Complaint ), 21-24, 52-55, 84-87, About this same period of time, Ordinance No (the Unadopted Ordinance ) was introduced by the City, which ordinance would have amended the zoning code to allow places of worship as a permitted use in single-family zoning districts. Id., 26-27, 56, 88, 121. The Unadopted Ordinance would have changed places of worship from a conditional use to a permitted use in single-family residential districts. See Unadopted 1 While this Motion assumes, as it must, that the allegations of the Complaint are true, candor with the Court requires the City to note that, in fact, no variances were granted in connection with the Chabad development. 2

3 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 3 of 22 Ordinance, attached hereto as Exhibit A. 2 The Unadopted Ordinance would have also replaced the phrase private clubs, lodges and fraternities with the phrase places of public assembly as permitted uses in business districts, including the B-1 local business district (the B-1 Business District ). Ex. A at 8. Places of public assembly would have included, inter alia, places of worship. Id. at 1. Accordingly, under the Unadopted Ordinance, any religious assembly, including Chabad, would have been able to locate in most City residential and business zoning districts as a matter of right. Id. Plaintiffs allege that the Unadopted Ordinance was met with stiff opposition. Compl., 26, 57, 89, 122. The Complaint alleges that Chabad, the City, representatives and attorneys for the Golden Triangle residents, and a local developer who owned the property located at 770 Palmetto Park Road in the City (the Property ) thereafter had secret internal and nonpublic discussions 3 about allowing Chabad to construct a place of worship in the B-1 Business District, which district allowed a place of public assembly as a permitted use, but did not permit construction of a place of worship such as the Chabad. 4 Id., 28, 59, 91, 124. Plaintiffs allege that, in January 2008, the City declined to proceed and voluntarily stayed its consideration of the [Unadopted] Ordinance. Id., 29, 60, 92, 125. Plaintiffs further allege that, approximately two months later, on March 25, 2008, the City s manager 2 When considering a motion to dismiss, courts should examine documents incorporated into the complaint by reference, and matters of which a court may take judicial notice[.] Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Unadopted Ordinance and the Adopted Ordinance fall into this category because they are referenced throughout the Complaint and because these public documents may be judicially noticed. See Fed. R. Evid. 201(b); Bryant v. Avado Brands, Inc., 187 F.3d 1271, (11th Cir. 1999) (holding that district courts are entitled to take judicial notice of public records in determining whether a Plaintiff s complaint states a claim upon which relief may be granted). 3 The Complaint s implicit suggestion that secret meetings between the City s Manager and City residents (Complaint, 28, 59, 91) and between the City s Manager and his Planning and Zoning Staff (Complaint, 31, 62, 94) are somehow improper is mistaken. Even if non-public meetings did occur, City administrative staff can (and frequently do) meet with members of the public and each other in full compliance with Florida s Sunshine Law, which applies to public boards and commissions, but not to individual employees , Fla. Stat. (2015). 4 As noted supra, the Code in effect prior to the adoption of the Adopted Ordinance actually permitted private clubs, lodges and fraternities, rather than place[s] of public assembly, as a permitted use in the B-1 Business District. See Adopted Ordinance at 11 (indicating previous language of code in strikeout), attached hereto as Exhibit B. 3

4 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 4 of 22 stated at a City Council meeting that the City staff was working on the issues of places of worship and that a report by the City s staff would be brought to the City Council in a few months. Id. Plaintiffs contend that the [City], through its Manager, without regard for the constitutional rights of Plaintiffs, initiated a change of the code by the City. Id., 31, 62, 94, 127. Specifically, Plaintiffs claim that the City directed staff begin a process to change by Ordinance the permitted use of the [Property] to include places of worship and that this secretly planned change was done for the sole purpose to allow construction of the Chabad on the Property. Id. Plaintiffs allege that under a secret directive to develop a process to ensure that the Chabad be allowed to build on the [Property], City staff advanced the issue by composing new definitions for permitted uses under the definition of Places of Public Assembly as then contained in the [City s] Code of Ordinances. Id., 32, 63, 95, The allegations regarding the violation are inconsistent and belied by the text of the subject ordinances. Plaintiffs allegations are facially contradictory in several ways. First, benefitting Chabad could not have been the sole purpose of the Adopted Ordinance because Plaintiffs allege that the Adopted Ordinance was passed for reasons other than promoting a particular religion, including to placate and appease the residents of the Golden Triangle; to alleviate concerns of the City of impact of the Chabad on Mizner Park; and to financially benefit the developer of the Property. Id. 31, 62, 94, 127. Secondly, including places of worship within the new code definition, places of public assembly could not have been done in response to any secret directive, because the Unadopted Ordinance, which Plaintiffs allege was drafted and proposed before the alleged secret meetings and secret directive, already included places of worship in the definition of places of public assembly (Ex. A at 2), and more importantly, would have expressly allowed places of public assembly as a permitted use in the B-1 Business District (and other zoning districts). Id. at 8. Moreover, the Unadopted Ordinance plainly states that the purpose of the new definition was to provide for uniform treatment of all places of public assembly and to protect religious freedom and address site related impacts. Id. at 1 (emphasis supplied). The Complaint goes on to allege that, on May 28, 2008, the City abandoned the Unadopted Ordinance and introduced, and ultimately adopted, the Adopted Ordinance which limited places of worship in a residential district (in other words, the opposite of previously 4

5 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 5 of 22 [Unadopted Ordinance]) and added places of worship in the City Code definition of Places of Public Assembly thus now prohibiting the Chabad from building in the Golden Triangle but allowing the Chabad to be built on the [Property]. [The Adopted Ordinance] was tailor-made for the Chabad to benefit. Id., 33, 64, 96, 129 (emphasis in original). As with previous allegations in the Complaint, the allegations are proven demonstrably false by reference to the actual Unadopted Ordinance and the Adopted Ordinance. The stated purpose of the Adopted Ordinance was to amend the list of permitted and conditional uses in most zoning districts to establish a consistent treatment for places of worship and places of public assembly, and to accomplish this task by replacing references to church and places of worship of God and by deleting the definition of private clubs, lodges, fraternities and similar private uses... as well as theaters and auditorium in the definition of places of public assembly[.] Ex. B. at 1 (emphasis supplied). The Adopted Ordinance defined the phrase places of public assembly broadly enough to include all of the aforementioned assemblies/uses, including places of worship. Id. at 3. The Adopted Ordinance further affirmed places of worship as a conditional use in the single family residential districts, as a permitted use in multi-family residential districts, and as a use treated similarly to other places of public assembly in business/commercial districts. A review of the Unadopted Ordinance, the Adopted Ordinance and the City s Code of Ordinances as it existed prior to the adoption of the Adopted Ordinance makes several facts clear. First, the Adopted Ordinance did not limit places of worship in residential districts or place new restrictions in residential neighborhoods for houses of worship (Complaint, 33-34, 64-65, 96-97, ); rather, it kept them, as they had been in the past, conditional uses, and, indeed, lessened restrictions by making them permitted uses in two multi-family residential districts (R-3-A and R-3-C), consistent with the treatment in other multi-family districts. Second, the inclusion of places of worship in the Adopted Ordinance was not done in response to the alleged secret meetings or directives, because the Unadopted Ordinance already included places of worship in the definition of places of public assembly and already included them as permitted uses in the B-1 Business District. Third, the Adopted Ordinance did not prohibit Chabad from locating in the Golden Triangle area (Complaint, 33, 64, 96, 129); places of worship were allowed as conditional uses in the Golden Triangle neighborhood both before and after the adoption of the Adopted Ordinance. Finally, the Adopted Ordinance was not 5

6 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 6 of 22 tailor made for Chabad to benefit (Complaint, 33, 64, 96, 129); the inclusion of places of public assembly (including places of worship) as permitted uses in the B-1 Business District was to clarify that all places of worship are to be treated consistently with other non-religious places of public assembly, which were already permitted uses in the B-1 Business District. Next, Plaintiffs allege that the City Council held four public hearings prior to the adoption of the Adopted Ordinance (on July 22, 2008, August 26, 2008, September 8, 2008 and September 9, 2008). Complaint, 34, 65, 97, 129. It is difficult to reconcile this contention with the contention that the City did not disclose to the public the effects of the proposed Adopted Ordinance, as Plaintiffs allege in 34, 65, 97, 129 of the Complaint. a. The Continuation Plaintiffs second set of allegations concern alleged meetings between the City and Chabad which ultimately led to the approval for the construction of the Chabad building to be located at the Property. Plaintiffs allege that the City needed to grant numerous unlawful variances and favorable intentional and erroneous interpretations of the [City s] Code in order to finally issue all necessary approval to allow the construction of the Chabad s religious project. Id., 36, 67, 99, 132. Plaintiffs identify the following actions in support of the claim that variances were granted: (a) granting a variance to increase the height of the Building to 40 feet 8 inches (Id., 39, 43, 70, 74, 102, 106, 134, 138); (b) granting a variance for parking and access to the Chabad (Id., 40, 71, 103, 135); and (c) approving the Chabad building with the aforementioned variances on May 27, 2015 (the Development Approval ) (Id., 43, 74, 106, 138). No detail whatsoever is offered to support the conclusory contention that any of these variances were unlawful, or based upon erroneous interpretations of the Code. Plaintiffs allege that the Chabad [b]uilding and improvements of the religious structure... encompassed 95% of the [Property] area, far in excess of any other non-religious [b]uilding in a similar B-1 zoning district, but they do not allege that construction of such a building violates any City development standard (or, if it does, that any required variances were not obtained). Id., 40, 71, 103, 135. Plaintiffs allege that any secular proposal similarly situated of similar size and impact would not have received the special treatment accorded the Chabad by the City, but they do not identify any actual proposal that was treated differently than the way Chabad was treated. Id., 41, 72, 104, 136. Plaintiffs also allege that [n]o other religious proposal has ever received 6

7 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 7 of 22 similar [City] assistance in exceeding established land use laws, and procedures in the [City], but they do not identify any religious proposal that did not receive the types of considerations that Chabad allegedly was given. 5 Id. Finally, Plaintiffs allege that all of the foregoing actions were done to improperly advance the religious interest of the Chabad and that they constitute a continuation of the initial violation by the [City] of the Establishment Clause, Plaintiffs Equal Protection rights, Due Process rights, and the Florida Constitution. Id., 46, 77, 109, 143. STANDARD OF REVIEW Under the plausibility standard applicable to federal complaints, pleaders must allege sufficient facts of each element to move beyond mere speculation, thereby nudg[ing] their claims across the line from conceivable to plausible[.] Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard requires more than labels and conclusions or formulaic recitation of the elements that amount to an unadorned, the-defendant-unlawfullyharmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, allegations that only show the mere possibility of misconduct will not survive a motion to dismiss. Id. at 679. Rather, [a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678. Then, after determining whether the factual allegations in the complaint state a plausible claim, the Court must also draw on its judicial experience and common sense to consider whether there is a more plausible explanation for the defendant s conduct than the one offered by the plaintiff. Id. at 679. ARGUMENT I. The Court Should Dismiss Count I of the Complaint, Alleging a Violation of the Establishment Clause, Because the City s Ordinances and Actions Have a Secular Purpose, Have a Neutral Effect on Religion, and Do Not Excessively Entangle Government With Religion. Plaintiffs principal claim is that the City has violated the Establishment Clause by (1) enacting an ordinance that allegedly confers an unconstitutional benefit on Chabad and (2) by granting a Development Approval for a Chabad building that contained variances from the City s zoning code. Taking the facts in the light most favorable to the Plaintiffs, these allegations fail to state a cause of action for violation of the Establishment Clause. 5 Plaintiffs also do not provide any detail regarding the alleged City assistance that Chabad received. 7

8 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 8 of 22 The First Amendment to the United States Constitution states that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof[.] U.S. Const. amend. I. The Establishment Clause prohibits governments from promoting or affiliating with any religious organization, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 590 (1989), and is a specific prohibition on forms of state intervention in religious affairs[.] Lee v. Weisman, 505 U.S. 577 (1992). To determine whether a law or government action violates the Establishment Clause, courts apply the Lemon test and inquire whether the law or action (1) has a secular purpose; (2) neither advances nor inhibits religion in its principal or primary effect; and (3) fosters an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, (1971). The first two prongs focus on whether the challenged governmental practice has the purpose or effect of endorsing religion[.] Allegheny, 492 U.S. at 593. Endorsement in this context is akin to promotion. Id. While this constitutional inquiry calls for line-drawing; no fixed, per se rule can be framed. Lynch v. Donnelly, 465 U.S (1984). A. The Adopted Ordinance and the Development Approval Have Secular Purposes. Lemon s purpose prong asks whether government s actual purpose is to endorse or disapprove of religion. Edwards v. Aguillard, 482 U.S. 578, 585 (1987). This does not mean that the law s purposes must be unrelated to religion that would amount to a requirement that the government show a callous indifference to religious groups, and the Establishment Clause has never been so interpreted. Corp. of Presiding Bishops of Church of Jesus Christ of Latterday Saints v. Amos, 483 U.S. 327, 335 (1987). Rather, Lemon s purpose requirement aims at preventing the relevant government decisionmaker... from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters. Id. A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate. Edwards, 428 U.S. at 599. Courts traditionally defer to a municipality s sincere articulation of a secular purpose, Edwards, 482 U.S. at 586, because courts are reluctant to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State s program may be discerned from the face of the statute. Mueller v. Allen, 463 U.S. 388, (1983); see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (holding that when the government professes a secular purpose for an arguably religious policy, the government s characterization is entitled to deference). 8

9 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 9 of 22 In this case, the secular purpose of the City s change to its zoning code is clear from the face of the Adopted Ordinance. The ordinance s recital (as well as its title) states that it was adopted to provide for consistent treatment of places of public assembly and places of worship. Prohibition of religious discrimination is unquestionably an appropriate, secular legislative purpose. Boyajian v. Gatzunis, 212 F.3d 1, 5 (1st Cir. 2000) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)). A law that simply protects religious organizations from unfair treatment certainly cannot be impermissible as an unconstitutional endorsement of religious activity. Id. at 6 (citing Wisconsin v. Yoder, 406 U.S. 205, (1972)). A city s effort to eliminate local discrimination is fully in line with the Court s approval of government actions aimed at lifting burdens from the exercise of religion. Id. Moreover, the Adopted Ordinance was adopted so as to establish a consistent treatment for places of worship and places of public assembly. Ex. B at 1. And the Adopted Ordinance undoubtedly furthers that secular legislative purpose. Before the Adopted Ordinance was adopted, the B-1 Business District allowed, as permitted uses, assembly uses such as private clubs, lodges and fraternities, but did not allow (at least expressly) religious places of assembly. Ex. B at 11. Because private clubs and lodges are similarly situated to synagogues, Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), 6 a zoning code that allowed such secular uses but prohibited a house of worship would violate the equal terms provision of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. s. 2000cc et seq ( RLUIPA ). Surfside, 366 F.3d at The City certainly had a secular legislative purpose in avoiding an RLUIPA violation. 7 Lemon s purpose prong is also satisfied when the challenged law is neutral toward religion, the critical question being whether the circumference of legislation encircles a class so broad that it can be fairly concluded that religious institutions could be thought to fall within 6 Midrash, literally, could not be more on-point. In Midrash, the 11th Circuit expressly held that private clubs and lodges are similarly situated to churches and synagogues for purposes of RLUIPA s equal terms clause. Midrash, 366 F.3d at The City Code, prior to adoption of the Adopted Ordinance expressly allowed private clubs; lodges, fraternities and similar uses in the B-1 Business District, but not places of worship. Ex. B at 9. 7 It is beyond debate in the 11th Circuit (and elsewhere) that RLUIPA is constitutional. Because RLUIPA accommodates religion by remedying and preventing discriminatory zoning in accordance with principles established by the First and Fourteenth Amendments, RLUIPA does not violate the Establishment Clause. Midrash, 366 F.3d at

10 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 10 of 22 the natural perimeter. Walz v. Tax Comm n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring). Thus, a law is clearly neutral when it confers a benefit upon a wide array of nonsectarian groups as well as religious organizations. Texas Monthly, Inc. v. Bullock, 489 U.S. at 14. The Adopted Ordinance confers benefits to all houses of worship within a broad class of property owners. Walz, 397 U.S. at 673; see also Concerned Citizens of Carderock v. Hubbard, 84 F. Supp. 2d 668, 674 (D. Md. 2000) (holding that where an ordinance has a valid secular purpose and achieves genuine neutrality toward religion, it does not violate the Establishment Clause of the First Amendment ). Surely the Adopted Ordinance, which requires places of worship to be treated consistently with other places of public assembly for zoning purposes, as directly required by RLUIPA and Midrash, supra, was adopted for a constitutionally permissible purpose. Accordingly, for all of the foregoing reasons, the Adopted Ordinance and the Development Approval have valid secular purposes. B. The Adopted Ordinance and the Development Approval Do Not Have The Principal or Primary Effect of Advancing or Inhibiting Religion. Lemon s effect prong asks whether a law or government action has a principal or primary effect... that neither advances nor inhibits religion. 403 U.S. at 612. [G]overnment may not be overtly hostile to religion but also may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general[.] Bullock, 489 U.S. at 9. The juxtaposition of the Establishment Clause and Free Exercise Clause, and the internal tension they create, makes total separation between religion and government impossible. Lynch, 465 U.S. at 673. It has never been thought either possible or desirable to enforce a regime of total separation between religion and government. Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). The Supreme Court has recognized that the First Amendment affirmatively mandates accommodation, Lynch, 465 U.S. at 673, and that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. Hobbie v. Unemployment Appeals Comm n of Fla., 480 U.S. 135, (1986). Thus, this Court s task in navigating the course between the opposing mandates of the [Establishment Clause and Free Exercise Clause] is thus to strike that appropriate balance referred to by the Court as a benevolent neutrality. Boyajian, 212 F.3d at 4 (citing Walz, 397 U.S. at 609). Additionally, a law or government action is not 10

11 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 11 of 22 unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden effects under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence. Amos, 483 U.S. at 337 (emphasis in original). Simply allowing a religious entity to better... advance [its] purposes does not rise to a constitutionally prohibited endorsement of religion. Id. at 336. In this case, the City enacted the Adopted Ordinance to ensure that those zoning districts that allow for places of public assemblies allow both religious and nonreligious assemblies. The effect of this change was not to advance or inhibit religion, but rather to assure that religion is treated with the benevolent neutrality required by the First Amendment and by the equal terms provision of RLUIPA. Indeed, had the City failed to update its zoning code, it was arguably in violation of the First Amendment. Midrash, 366 F.3d at The City also allegedly granted a Development Approval that included variances from height and parking requirements. This does not have the primary or principal effect of promoting Chabad because the Establishment Clause does not bar the extension of general benefits to religious groups. VFW John O Connor Post #4833 v. Santa Rosa Cnty., Fla., 506 F. Supp. 2d 1079, 1090 (N.D. Fla. 2007). In fact, courts have even upheld zoning ordinances that permitted religious assemblies as of right in residentially-zoned areas, but only allowed nonreligious assemblies under a special exception. See Boyajian v. Gatzunis 212 F.3d at 5 (upholding, against Establishment Clause challenge, state law and town ordinance prohibiting zoning restrictions on the use of land for religious or educational purposes if, inter alia, the land is owned by a religious organization ); Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283, 292 (4th Cir. 2000) (reversing summary judgment against a city and holding that a zoning ordinance requiring some nonresidential uses to obtain special use permits but exempting religious institutions from this requirement); Cohen v. City of Des Plaines, 8 F.3d 484, 485 (7th Cir. 1993) (upholding, against Establishment Clause and Equal Protection challenges, a municipal zoning ordinance that allowed nursery schools operated in churches as a matter of rights, but allowed secular day care centers only by special use permit); Hubbard, 84 F. Supp. 2d 668, 669 (D. Md. 2000) (dismissing a section 1983 case claiming that a city violated Establishment Clause by making religious assemblies a permitted use in residential neighborhoods but requiring private lodges and fraternities to obtain a special use permit). 11

12 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 12 of 22 As in Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1261 (10th Cir. 2004), where the Circuit Court upheld the dismissal of an Establishment Clause claim for failure to state a claim, the instant case is one of neutrality and equal access, in which the City does nothing to advance religion, but merely enables the Chabad to advance itself. Accordingly, neither the Adopted Ordinance nor the Development Approval has the primary or principal effect of promoting Chabad. C. The Adopted Ordinance and the Development Approval Do Not Foster an Excessive Entanglement With Religion. Lemon s final prong instructs that government must not foster an excessive entanglement with religion. Lemon, 403 U.S. at 613. This inquiry requires examination of the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Id. at 615. Building and zoning regulations are an example of necessary and permissible contacts between church and state. Id. at 614. Far from entangling the City with religion, the Adopted Ordinance effectuates a separation between the two and avoids intrusive inquiry into religious belief and practice. See Cohen, 8 F.3d at 486. As in Cohen, there is nothing in the Adopted Ordinance that allows the City to apply its zoning code favorably to Chabad, but not other religions or places of public assemblies, and there is no accusation in the Complaint that any actual religious or nonreligious group has been affirmatively treated differently by the City. Id. at 494. [T]he Establishment Clause was intended to afford protection [against] sponsorship, financial support, and active involvement of the sovereign in religious activity. Lemon, 403 U.S. at 612. The Complaint makes no allegations that implicate any City financial support or day-to-day involvement with Chabad and thus in these respects also provide no basis for concluding that the City has an excessive entanglement problem. VFW John O Conner Post #4833, 506 F. Supp. 2d at Because the facts alleged in the Complaint fail to establish that the Adopted Ordinance or the Development Approval have a religious purpose, have the primary or principal effect of promoting religion, or entangle government with religion, Plaintiffs have failed to state a cause of action for violation of the Establishment Clause. 8 8 Because Plaintiffs remaining claims rely on the same theories as those that fail to support the Establishment Clause claim, the Court should dismiss these claims on similar grounds. See 12

13 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 13 of 22 II. The Court Should Dismiss Count II of the Complaint, Alleging a Violation of the Equal Protection Clause, Because the Adopted Ordinance and Actions are Rationally Related to a Legitimate Government Purpose and Because Plaintiffs Fail to Specifically Identify Similarly Situated Persons. The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of its laws. U.S. Const., amend. XIV. This is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiffs complain that the Adopted Ordinance and the City s grant of the Development Approval (with associated variances) offends equal protection principles because they gave special treatment to Chabad, a religious organization, that no other secular proposal of similar size and impact would have received and that no other religious proposal has ever received. Compl., 41, 72, 104, 136. These allegations are insufficient to support an Equal Protection claim. First, as explained above, the Adopted Ordinance is neutral on its face and [is] motivated by a permissible purpose of limiting governmental interference with the exercise of religion by being consistent in the treatment of zoning classifications for religious and nonreligious assemblies. Amos, at 483 U.S. at 339. Consequently, in evaluating whether the Adopted Ordinance violates the Equal Protection Clause, the proper inquiry is whether [the City] has chosen a rational classification to further a legitimate end. Id. The foregoing Establishment Clause analysis demonstrates that the City acted with a legitimate purpose in crafting a new category in its zoning code for places of public assembly that applies to both religious and nonreligious assemblies. Accordingly, the Adopted Ordinance is rationally related to the legitimate purpose of assuring that religious and nonreligious assemblies are treated consistently and that neither the Constitution nor the equal terms provision of RLUIPA are violated by the City s zoning code. Second, Plaintiffs fail to demonstrate why the Development Approval, with its concomitant variances regarding height and parking, violates the Equal Protection Clause. Konikov v. Orange Cnty., Fla., 410 F.3d 1317, 1319 n.1 (11th Cir. 2005) (declining to reach equal protection, free exercise, free speech, and freedom of assembly claims because they relied on the same theories underlying the RLUIPA and due process claims dismissed by the trial court) (citing Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)). If, however, the Court decides these derivative claims, they should also be dismissed for failure to state a claim upon which relief can be granted. 13

14 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 14 of 22 Plaintiffs do not contend that the provisions allowing for variances are unconstitutional on their face, but rather that they were unconstitutionally applied to Chabad s development application. In order for their equal-protection claim to get even off the ground, the plaintiffs must have a colorable basis for representing that they are similarly situated to the class of persons accorded different treatment. Kid s Care, Inc. v. State of Ala. Dep t of Human Res., 2001 WL , at *3 (M.D. Ala. June 14, 2001). Non-religious entities are not similarly situated to religious entities as a matter of constitutional law, and therefore alleging that Chabad received a benefit that a theoretical nonreligious entity would not have received does not state an Equal Protection claim. Id. Furthermore, Plaintiffs only allegation regarding other religious entities is that [n]o other religious entity has ever received similar City assistance as that received by Chabad. Compl., 41. Plaintiffs do not allege that they, as Christians or members of a different religious assembly, were ever treated differently than Chabad. As the District Court explained in Diehl v. Village of Antwerp, 964 F.Supp. 646, 656 (N.D. N.Y. 1997): It is well settled... that an equal protection claim under the Fourteenth Amendment requires a showing of intentional discrimination. To establish such intentional or purposeful discrimination, it is axiomatic that plaintiffs must allege that similarly situated persons have been treated different. In particular..., they must allege that defendants, as government entities, not only deliberately interpreted a statute against plaintiffs, but also singled out plaintiffs alone for that misinterpretation. Where, as here, the Complaint does not allege that the City ever actually treated Plaintiffs differently than the Chabad, plaintiffs equal protection claim is insufficient as a matter of law and must be dismissed. Id.; see also Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) (dismissing equal protection claim where Complaint lacked allegations that others were actually treated differently). Simply put, Plaintiffs fail to identify comparators in the pleading in order to show intentional, discriminatory treatment different from others similarly situated. Eisenberg v. City of Miami Beach, 1 F. Supp. 3d 1327, 1340 (S.D. Fla. 2014). Plaintiffs are not permitted simply to rely on broad generalities in identifying a comparator. Id. Plaintiffs failure to allege at least one similarly situated comparator with respect to the Development Approval dooms their Equal Protection claim. Id. at Count II should accordingly be dismissed because it fails to state a cause of action upon which relief can be granted. 14

15 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 15 of 22 III. This Court Should Dismiss Count III of the Complaint, Alleging A Procedural Due Process Violation, Because there is No Alleged Deprivation by the City and the State of Florida Provides For Constitutionally Adequate Process as a Matter of Law. The Complaint alleges that, with regard to a May 27, 2015, City Council meeting at which the City issued the Development Approval for the Chabad building with all requested deviations and variances, Complaint, 106, the City did not comply with its own rules and law to comply with the Plaintiffs (sic) due process rights. Id., 112. As a result, Plaintiffs claim that the procedural due process rights of the Plaintiffs were violated. Id., 113. Such allegations fail to state a claim for a procedural due process civil rights violation. A 1983 action alleging a procedural due process violation requires proof of three elements: a deprivation of a constitutionally-protected liberty 9 or property interest 10 ; state action; and constitutionally inadequate process. Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). Because the Complaint does not describe a single instance in which the City deprived Plaintiffs of their constitutional right of notice and opportunity to be heard at a public meeting, there has been no deprivation by the City 11, and no procedural due process action is currently viable. More fundamentally, even if Plaintiffs were not afforded sufficient notice and/or opportunity to be heard at the City s Planning and Zoning Board or at the City Council meeting, no actionable procedural due process violation will have occurred because: 9 Establishment Clause-based liberty interests are an insufficient basis for a procedural Due Process claim. Because no amount of procedural process justifies a government establishment of religion, the success of such a procedural Due Process claim directly depends on the merits of the Establishment Clause claim. For this reason, the procedural Due Process claim is subsumed in the Establishment Clause claim, and the stand-alone Due Process claim is subject to dismissal. Doswell v. Smith, 139 F.3d 888, *6 (4th Cir. 1998) (unpublished decision). See also Peloza v. Capistrano United Sch. Dist., 37 F.3d 517, 523 (9th Cir. 1994) (affirming dismissal of Establishment Clause-based Procedural Due Process claim). 10 There is simply no constitutionally-protected property interest in preventing activity on a neighbor s property. Barth v. McNeely, 603 Fed.App x 846, 849 (11th Cir. 2015). 11 Indeed, the Complaint affirmatively indicates that the approvals sought by Chabad were recommended by the City s Planning and Zoning Board at a final public hearing Complaint, 105, and by the City Council [a]t its May 27, 2015 meeting Complaint, 106. It is accordingly difficult to ascertain what procedural process Plaintiffs claim to have been deprived of. 15

16 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 16 of 22 a procedural due process violation is not complete... unless and until the State fails to provide due process. In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise. McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994). In Florida, however, a party can challenge a development order issued by a local government by filing a Petition for Writ of Certiorari under the authority of Florida Rule of Appellate Procedure 9.100(c)(2). See Bd. of Cnty. Comm rs of Brevard Cnty. v. Snyder, 627 So.2d 469, 474 (Fla. 1993). And, with regard to such a Petition, [w]here a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine whether procedural due process is afforded, whether the essential requirements of law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence. Vaillant, 419 So. 2d at 626 (emphasis supplied). With these State-created, constitutionally adequate review mechanisms in place, efforts by property owners to assert Section 1983 claims against Florida municipalities based upon purported procedural due process violations at municipal hearings meet with universal failure. See, e.g. Flagship Lake Cnty. Dev. Number 5, LLC v. City of Mascotte, Fla., 559 Fed.App x 811, 815 (11th Cir. 2014) (affirming dismissal of Procedural Due Process claim in connection with City rezoning decision, noting that [a]gain and again, this Court has repeated the basic rule that a procedural due process claim can exist only if no adequate state remedies are available); Michael Linet, Inc. v. Village of Wellington, Fla., 2004 WL , *7 (S.D. Fla. 2004) (Because Florida provides constitutionally-adequate review of alleged procedural due process violations, no Section 1983 due process claim is viable). Moreover, the right to file a Petition for Writ of Certiorari prevents a section 1983 procedural due process claim even if the plaintiff did not, in fact, file such a petition. Horton v. Bd. of Cnty. Comm rs of Flagler Cnty., 202 F.3d 1297, 1300 (11th Cir. 2000). Count III should accordingly be dismissed because it fails to state a claim upon which relief can be granted. 16

17 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 17 of 22 IV. This Court Should Dismiss Count IV of the Complaint, Alleging A Violation of the Florida Constitution, Because the Expenditure of Municipal Staff Time Does Not Provide Aid to Religion and, in Any Event, there is No Cause of Action for Money Damages for Any Purported Violation of the No Aid Provision in Florida s Constitution. Count IV of the Complaint seeks compensation for an alleged violation of the No Aid provision of Article I, Section 3 of the Florida Constitution. Because the Complaint fails to allege that any municipal revenues were paid by the City to Chabad, this claim fails as a matter of law. In any event, the request for money damages should be dismissed, as such a remedy is simply not available under the referenced provision. A. The Complaint Does Not Allege the Transfer of Government Funds. Under the Florida Constitution, no revenue of any political subdivision shall ever be taken from the public treasury directly or indirectly in aid of any church[.] Fla. Const. art. I sec. 3. The Complaint, however, does not allege that any funds have been taken from the City s treasury at all. Instead, the Complaint only contends that there has been an expenditure of labor by City employees. Compl., 143. Such expenditure, even if proven, does not violate the Florida Constitution. Plaintiffs misread the Florida Constitution. The No-Aid provision, while prohibiting religious aid even if it is indirect, prohibits only actual revenue from being taken from the public treasury. Indirect aid, as alleged in the Complaint, is simply not unconstitutional. Thus, assistance to a religious institution through such mechanisms as tax exemptions, revenue bonds, and similar state involvement are substantially different forms of aid than the transfer of public funds expressly prohibited by the no-aid provision. Bush v. Holmes, 886 So.2d 340, 356 (Fla. Dist. Ct. App. 2004), aff d, 919 So.2d 392 (Fla. 2005). The former are constitutional because the prohibitions of the no-aid provision are limited to the payment of public monies. Id. (emphasis supplied); see also Atheists of Fla., Inc. v. City of Lakeland, Fla., 713 F.3d 577, 596 (11th Cir. 2013) (upholding city s actual expenditures for mailing out prayer invitations to religious congregations against no-aid challenge because no religious organization received financial assistance from [the city] for the promotion and advancement of its theological views ) (emphasis supplied). Because the Complaint does not allege that City monies were provided to Chabad, Count IV should be dismissed. 17

18 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 18 of 22 B. The Request for Damages is Improper and Should be Dismissed. Even if Count IV is permitted to proceed at all, the request for compensatory and punitive damages (Complaint, 143(G)) should be dismissed. The Florida Constitution requires specific, clear, and unambiguous language to constitute a waiver of sovereign immunity. Manatee Cnty. v. Town of Longboat Key, 365 So.2d 143, 147 (Fla. 1978). A provision of the Florida Constitution that does not expressly provide for money damages against a government is insufficiently clear to allow for such damages. See, e.g., Garcia v. Reyes, 697 So.2d 549, 550 (Fla. Dist. Ct. App. 1997) ( there is no cause of action for money damages against the state... arising directly under the due process clause, article I section 9, of the Florida Constitution); Tucker v. Resha, 634 So.2d 756, 759 (Fla. Dist. Ct. App. 1994) ( It is thus clear that article I, section 23 does not create a cause of action for governmental intrusion because legislative enactment is needed to delineate whether immunity is waived to permit the award of money damages ); Fernez v. Calabrese, 760 So.2d 1144, 1145 (Fla. Dist. Ct. App. 2000) (holding that there is no cause of action for money damages for purported violations of substantive due process, procedural due process or free speech under Florida Constitution. V. There Are Additional Grounds for Dismissal. A. Plaintiffs Do Not Have Standing. The only contentions in the Complaint arguably relevant to Plaintiffs standing are: (a) Plaintiffs are taxpayers of the City (Complaint, 11); (b) Plaintiffs are domiciled in the City (Complaint, 9-10); and (c) Plaintiffs are members of a Christian religion (Complaint, 9-10). None of these allegations are sufficient to confer standing. With regard to taxpayer standing, a municipal taxpayer has standing to challenge a violation of the Establishment Clause by the municipality when the taxpayer is a resident who can establish that tax expenditures were used for the offensive practice. Pelphrey v. Cobb County, Georgia, 547 F.3d 1263, 1280 (11th Cir. 2008). The Complaint s allegation that certain salaried employees of the City expended time in connection with Chabad issues falls far short of identifying an actual expenditure made to Plaintiffs detriment. With regard to traditional Article III standing, the Complaint s allegations are simply insufficient. While it is true that an actual injury for standing purposes occurs if a Plaintiff is subjected to unwelcome religious statements and is directly affected by the laws and practices against [which his or her] complaints are directed, Saladin v. City of Milledgeville, 812 F.2d 18

19 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 19 of , 692 (11th Cir. 1987), such a plaintiff must have had direct contact with the offensive conduct of the City in order to have suffered a sufficient injury for standing. Id. at The Complaint contains no such allegations of direct contact, 12 and dismissal is therefore required. B. The Complaint Does Not Identify An Unconstitutional Custom or Policy The Complaint purports to identify misconduct on the part of the City, through its Manager. See, e.g., Complaint, 31, 32. However, the Complaint wholly fails to allege that Plaintiffs purported injuries were caused by an unconstitutional custom or policy of the City, or that the City s Manager is authorized to establish the challenged City policies. Such failures preclude a valid cause of action from being asserted against the City. Monell v. Dep t of Social Servs. of the City of New York, 436 U.S. 658 (1978). C. The Complaint Does Not Identify a Basis for Compensatory Damages, and Improperly Seeks Punitive Damages. While the Complaint purports to seek compensatory damages (Complaint at 36), there are simply no allegations of compensable harm. Under such circumstances, compensatory damages are not available. Doe v. Santa Fe Independent School District, 168 F.3d 806, 824 (5 th Cir. 1999). The Complaint also impermissibly seeks punitive damages against the City which are not available in these 42 U.S.C. s claims. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). CONCLUSION The Adopted Ordinance, and the Development Order allowing the construction of a place of worship in the B-1 Business District easily fit within the tension created by the Establishment Clause and the Free Exercise Clause of the First Amendment. Moreover, not only 12 Because development has yet to occur on the Property (See Complaint at p. 36, seeking as relief, inter alia, an injunction enjoining development of the [Property] ), Plaintiffs have had no further direct contact with the City s putative establishment of religion since the Adopted Ordinance was adopted in Accordingly, the Complaint can be dismissed on the alternative grounds that this action is barred by the statute of limitations. See, e.g., Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 237 (3d Cir. 2014) (The continued effect of a municipal action taken in purported violation of the Establishment Clause outside of the limitations period cannot be used to revive time-barred claims under a continuing violation theory). 19

20 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 20 of 22 is the Adopted Ordinance compliant with RLUIPA (and the 11th Circuit s interpretation of RLUIPA in Midrash and elsewhere), it was virtually required thereby. For the foregoing reasons, the Complaint should be dismissed. WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. Counsel for Defendant City of Boca Raton 200 E. Broward Blvd., Suite 1900 Fort Lauderdale, FL Telephone: (954) Telecopier: (954) By: /s/ Daniel L. Abbott JAMIE A. COLE Florida Bar No Primary: jcole@wsh-law.com Secondary: msarraff@wsh-law.com DANIEL L. ABBOTT Florida Bar No Primary: dabbott@wsh-law.com Secondary: pgrotto@wsh-law.com ADAM A. SCHWARTZBAUM Florida Bar No Primary: aschwartzbaum@wsh-law.com Secondary: imunoz@wsh-law.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 8 th, 2016, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing. By: /s/ Daniel L. Abbott Daniel L. Abbott 20

21 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 21 of 22 SERVICE LIST UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO: 9:16-cv MARRA/MATTHEWMAN GERALD GAGLIARDI and KATHLEEN MacDOUGAL, Plaintiff, v. CITY OF BOCA RATON, a Florida municipal corporation, Defendant, and CHABAD OF EAST BOCA, INC. and TJCV LAND TRUST, Proposed Intervenors. Marci A. Hamilton, Esq. 36 Timber Knoll Drive Washington Crossing, PA Telephone: (215) PA Bar No.: Hamilton.marci@gmail.com Attorney for Plaintiffs Gerald Gagliardi and Kathleen MacDougall Arthur C. Koski, Esq. ARTHUR C. KOSKI, PA 101 North Federal Highway, Ste. 602 Boca Raton, FL Telephone (561) Florida Bar No.: akoski@koskilaw.com adm@koskilaw.com Attorneys for Plaintiffs Gerald Gagliardi and Kathleen MacDougall Elliot C. Harvey Schatmeier, Esq. Kirkland & Ellis, LLP 601 Lexington Ave. New York, NY Telephone: (212) Elliot.harveyschatmeier@kirkland.com Attorneys for Defendant Chabad of East Boca, Inc., and Intervenor Defendant TJCV Land Trust Jamie A. Cole, Esq. Daniel L. Abbott, Esq. Adam A. Schwartzbaum, Esq. WEISS SEROTA HELFMAN COLE & BIERMAN, P.L. 200 E. Broward Blvd., Suite 1900 Fort Lauderdale, FL Telephone: (954) Florida Bar No.: Florida Bar No.: Florida Bar No.: dabbott@wsh-law.com jcole@wsh-law.com aschwartzbaum@wsh-law.com Attorneys for Defendant City of Boca Raton Henry B. Handler, Esq. Weiss, Handler & Cornwell, PA 2255 W. Glades Road, Suite 218-A Boca Raton, Florida Telephone: (561) Florida Bar No.: hbh@weissandhandlerpa.com Attorneys for Defendant Chabad of East Boca, Inc., and Intervenor Defendant TJCV Land Trust 21

22 Case 9:16-cv KAM Document 21 Entered on FLSD Docket 03/08/2016 Page 22 of 22 Jay P. Lefkowitz, Esq. Kirkland & Ellis, LLP 601 Lexington Ave. New York, NY Telephone: (212) Attorneys for Defendant Chabad of East Boca, Inc., and Intervenor Defendant TJCV Land Trust Steven J. Menashi, Esq. Kirkland & Ellis, LLP 601 Lexington Ave. New York, NY Telephone: (212) Attorneys for Defendant Chabad of East Boca, Inc., and Intervenor Defendant TJCV Land Trust. Lawrence C. Marshall, Esq. Kirkland & Ellis, LLP 300 North LaSalle Chicago, Il Telephone: (412) Attorneys for Defendant Chabad of East Boca, Inc., and Intervenor Defendant TJCV Land Trust Elliot C. Harvey Schatmeier Kirkland & Ellis, LLP 601 Lexington Avenue New York, NY Telephone (212) Attorneys for Intervenor Defendant Chabad of East Boca, Inc. 22

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40 Case 9:16-cv KAM Document 21-2 Entered on FLSD Docket 03/08/2016 Page 1 of 24 FINAL 9/ 9/ 2008 Incorpo~; ted 1925 d' ~ 11II ".,,_ " ORDINANCE AN ORDINANCE OF THE CITY OF BOCA RATON 3 AMENDING CHAPTER 28, CODE OF ORDINANCES, 4 PROVIDING A DEFINITION FOR " PLACES OF WORSHIP" 5 AND " PLACES ' OF PUBLIC ASSEMBLY"; AMENDING THE 6 LIST OF PERMITTED AND CONDITIONAL USES IN MOST 7 ZONING DISTRICTS TO ESTABLISH A CONSISTENT 8 TREATMENT FOR PLACES OF WORSHIP AND PLACES 9 OF PUBLIC ASSEMBLY; REPLACING REFERENCES TO CHURCH" AND " PLACES OF WORSHIP OF GOD"; PROVIDING FOR PLACES OF WORSHIP AS A PERMITTED USE IN THE R- 3- A AND R- 3- C ZONING DISTRICTS; DELETING THE DEFINITION OF " PRIVATE CLUBS, LODGES, FRATERNITIES AND SIMILAR PRIVATE USES" AND INCLUDING SAID CATEGORY, AS WELL AS THEATERS AND AUDITORIUM", IN THE DEFINITION OF PLACES OF PUBLIC ASSEMBLY; MODIFYING THE PARKING REQUIREMENTS FOR PLACES OF PUBLIC 19 ASSEMBLY AND DELETING PARKING REQUIREMENTS 1

41 Case 9:16-cv KAM Document 21-2 Entered on FLSD Docket 03/08/2016 Page 2 of 24 1 FOR USES INCLUDED WITHIN SAID CATEGORY; 2 DELETING THE CATEGORY OF " INSTITUTIONS OF AN 3 EDUCATIONAL, PHILANTHROPIC OR RELIGIOUS 4 CHARACTER"; DELETING " PRIVATE CLUBS AND 5 COMMUNITY SERVICE ORGANIZATIONS" FROM THE PUD 6 COMMERCIAL NODE AND " PRIVATE CLUBS" AND 7 RELATED USES FROM THE M- 3 DISTRICT AND THE L1RP 8 COMMERCIAL NODE; DELETING " MOVIE THEATERS" IN 9 THE L1RP DISTRICT; DELETING " DRIVE- IN THEATERS" IN 10 THE M- 1 DISTRICT; AND MAKING SUCH AMENDMENTS 11 AND REVISIONS, AS APPROPRIATE, TO ESTABLISH A 12 CONSISTENT TREATMENT FOR PLACES OF PUBLIC 13 ASSEMBLY AND PLACES OF WORSHIP; PROVIDING FOR 14 SEVERABILITY; PROVIDING FOR REPEALER; PROVIDING 15 FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE 16 ( AM ) WHEREAS, the City Council desires to amend various sections of Chapter 28, Code 19 of Ordinances, to provide for consistent treatment of places of public assembly and places of 20 worship; now therefore THE CITY OF BOCA RATON HEREBY ORDAINS:

42 Case 9:16-cv KAM Document 21-2 Entered on FLSD Docket 03/08/2016 Page 3 of 24 1 Section 1. Section 28-2, Code of Ordinances, is amended as follows: 2 " Places of public assembly" shall mean any area, buildinq or structure where people 3 assemble for a common purpose. such as social. cultural. recreational and/ or reliqious 4 purposes. whether owned and/ or maintained by a for-profit or not-for-profit entity. and includes. 5 but is not limited to, public assembly buildinqs such as auditoriums, theaters, halls, private clubs 6 and fraternallodqes, assembly halls, exhibition halls, convention centers, and places of worship, 7 or other areas, buildinqs or structures that are used for reliqious purposes or assembly by 8 persons. 9 " Places of worship" shall mean any area, buildinq or structure where people assemble 10 for reliqious purposes. 11 " Private clubs, lodges, fraternities and similar private uses" shall mean buildings or 12 facilities o'nned or operated by a corporation, association or persons for a social, educational or 13 recreational purpose, but not primarily for profit or to render a service that is customarily carried 14 on as 3 business, and shall spocifically exclude bottle clubs. 15 Section 2. Section , Code of Ordinances, is hereby amended as follows: 16 Sec Conditional uses. 17 Conditional use approval may be requested in single family residential districts by 18 the owner of the subject property for the following uses in accordance with Division 4 of Article 19 II: 20 ( 1) Churches and places of '." lorship of God and ~ 50cial service and places activities.,. 21 of worship. 22 ( 2) Child care, adult care and specialized care centers, and social service activities, 23 anyone of which may only be allowed as an accessory use to approved institutional uses 24 subject to provisions of section et seq. Any child care, adult care and specialized care 25 centers and social service activities existing as of July 26, 1988, and conforming as to use or 26 structure as of that date may continue as a legal use under the requirements then in effect. 27 ( 3) Public and nonprofit museums, libraries, social centers, parks, open space and 28 recreational areas including bodies of water and cemeteries. 29 ( 4) Public, private and parochial schools having an established curriculum, including 30 kindergarten, elementary, middle and high schools, colleges and universities. All activities and 31 facilities normally considered accessory thereto shall be included hereunder, such as and athletic fields which are 32 dormitories, lunchrooms, bookstores, gymnasiums, playgrounds 3

43 Case 9:16-cv KAM Document 21-2 Entered on FLSD Docket 03/08/2016 Page 4 of owned and operated by the main facility and used in connection therewith and which are located on the same plot or on a plot which is confined therewith under a unity of title declaration. 5) Helistops, as defined, regulated and controlled by section et seq. 6) Signs, as defined, regulated and controlled by chapter 24. 7) Detached buildings to provide living accommodations for servants or for noncommercial guests in R- E- 2 and R- E- 1 zoning districts. Such building must be located on the same plot as the main single-family residence of the employer of the servants or host of the guests. The minimum living area of any such building or detached structure shall be 500 square feet or more, and shall be limited to the use of accommodation of not more than 1 single-family unit or equivalent at any 1 time. 8) Any nonresidential building or structure having a height in excess of 25 feet. 9) Antennas, towers, masts or satellite dishes which do not comply with the provisions of section ( 1). 10) Docks located on a vacant plot ( hereinafter "dock plot") which was platted in such a manner as to be unsuitable for single-family development provided the following conditions are met: ) Features, listed in the definition of height of building and structure ( section 28-2, Code of Ordinances) for purposes of exempting same from the height calculation, of nonresidential buildings and structures ( authorized in the single-family residential district regulations) but only to the extent the height of the feature or structure exceeds 50 feet. Section 3. Section , Code of Ordinances, is hereby amended as follows: 25 Sec Conditional uses permitted. 26 In the R- 2 district, the following conditional uses shall be permitted: churches and 27 places of worship of God and ~ 50cial service and places of worship. activities.,. 28 Section 4. Section , Code of Ordinances, is hereby amended as follows: 29 Sec Permitted uses. 30 In R-3 districts, no building or structure, or part thereof, shall be erected, altered or 31 used, or premises used, in whole or in part for other than 1 or more of the following specified 32 uses: a) Uses permitted in R- 1 and R- 2 districts. Single-family dwellings shall conform to R- 1- B requirements. Duplex dwellings shall conform to section et seq. requirements. b) Multiple dwellings and uses accessory to multiple dwellings, including laundry machines and vending machines fully enclosed within the main building; garages; recreational facilities including cabana units, sauna units, recreation buildings, swimming pools, tennis courts, golf courses, putting greens and shuffleboard courts, providing they are for the sole use of the occupants and their guests; and private docks and mooring facilities shall not project more than 5 feet into any waterway nor extend nearer than 25 feet to any other residentially zoned property, except upon the approval of the city council in acting upon the recommendations in regard thereto, made by the planning and zoning board in response to an 4