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A Hand of Hope Pregnancy Resource Center v. City of Raleigh

United States District Court, E.D. North Carolina, Western Division

July 27, 2018

A HAND OF HOPE PREGNANCY RESOURCE CENTER, a North Carolina not-for-profit corporation, doing business and ministry as Your Choice Pregnancy Clinic, Plaintiff,
CITY OF RALEIGH, a North Carolina municipal corporation, Defendant.


          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on the motion for partial summary judgment filed by plaintiff A Hand of Hope Pregnancy Resource Center (“Hand of Hope”). (DE # 46.) Defendant the City of Raleigh (the “City”) filed a response in opposition, (DE # 54), in which it argues that it is entitled to partial summary judgment. Also before the court is the motion for preliminary injunction filed by Hand of Hope. (DE # 25.) The issues raised have been fully briefed and are therefore ripe for disposition.

         I. BACKGROUND

         Hand of Hope is a not-for-profit religious organization that operates a pregnancy resource center called Your Choice Pregnancy Clinic in Raleigh, North Carolina. (Am. Compl., DE # 40, ¶¶ 3, 12.)[1] As set forth in its mission statement, Hand of Hope's primary objective is to “affirm the value of life from conception by compassionately sharing the gospel of Jesus Christ[.]” (Id., Ex. A, at 33.) Part of Hand of Hope's services are religious in nature, with clients being offered prayer, Bible study, and spiritual counseling. (Id. ¶ 22.) Hand of Hope also provides clients with free reproductive healthcare information, physician-quality pregnancy testing, limited obstetrical ultrasounds, pregnancy counseling and support, post-abortion support, and life skills classes. (Id.)

         Hand of Hope previously operated Your Choice Pregnancy Clinic at a building located on 1701 Jones Franklin Road in Raleigh. (Summers Decl., DE # 49-2, ¶ 8.) In December 2015, Hand of Hope purchased a .9 acre parcel of land located at 1522 Jones Franklin Road (the “Property”) with the intention of relocating Your Choice Pregnancy Clinic. (Am. Compl., DE # 40, ¶¶ 16, 19-20.) The Property is currently improved with a single family home, (id. ¶17), and is located in an area zoned Residential-4 with Special Highway Overlay District-2, (id. 27). The Property is immediately adjacent to an abortion clinic, A Preferred Women's Health Care Center of Raleigh (“A Preferred Women's Health Center”), located at 1604 Jones Franklin Road. (Id. ¶ 16.) The location at 1604 Jones Franklin Road was rezoned in 1996 from a residential zoning classification to a commercial one at the request of a prior owner, who was a real estate appraiser. (Eldredge Decl., Ex. 22, DE # 56-9, at 2.) As a result, A Preferred Women's Health Center is currently located on a lot zoned Office Mixed Use-3 stories. (Am. Compl., DE # 40, ¶¶ 27-28.)

         The City's zoning procedures and regulations are set forth in the Raleigh Unified Development Ordinance (the “UDO”). (See Ordinance Adopting UDO, DE # 12-2.) The UDO contains an Allowed Principal Use Table (the “Table”) that identifies in which zoning districts each use listed is allowed as a matter of right without any further approval by the City. (See UDO Excerpts, Ex. 3, DE # 12-3, at 3-6.) The Table lists that “civic uses” are permitted as of right in residential zones.[2] (Id. at 4.) “Civic uses” are defined in the UDO as “[p]laces of public assembly that provide ongoing governmental, life safety, educational and cultural services to the general public, as well as meeting areas for religious practice.” (Id. at 8.) The term “civic use” embraces “[p]laces of worship including church, mosque, synagogue, [or] temple.” (Id.) The Table also lists that “medical uses” are not permitted within residential zones. (Id. at 4.) The term “medical use” is defined in the UDO as “[a] facility providing medical or surgical care to patients.” (Id. at 12.)

         The City has both an Existing Land Use Map, (Am. Compl., DE # 40, ¶ 27), which shows how the land within its jurisdiction is currently zoned, and a Future Land Use Map, (id. ¶ 26), which reflects the 2030 Comprehensive Plan for the City of Raleigh (“2030 Comprehensive Plan”) and how the City ultimately intends for the land to be zoned.[3] On the Existing Land Use Map, the Property directly adjoins lots zoned for office and mixed use along its northern, southern, and eastern property lines. (Id. ¶¶ 27-28.) The adjacent lots to the west, however, are zoned for residential use. (Id.) On the Future Land Use Map, the Property is zoned as “Office/Research & Development” as are all adjacent properties. (Id. ¶ 26.)

         After purchasing the Property, Hand of Hope sought guidance from the City regarding whether its pregnancy resource center was a permissible use of the Property. (Id. ¶ 36; Summers Decl., DE # 49-2, ¶¶ 17-18.) The City's zoning officials advised Hand of Hope that rezoning would be necessary. (Summers Decl., DE # 49-2, ¶¶ 17-18.) Hand of Hope subsequently sought rezoning approval from the City to operate its pregnancy resource center on the Property. (Am. Compl., DE # 40, ¶¶ 34-35.) On 8 January 2016, Hand of Hope's representatives attended a required pre-application meeting with Daniel Band, the City's Long Range Planner, who confirmed that rezoning was necessary and advised that the proposed use of the Property was consistent with office mixed use zoning.[4] (Id. ¶ 36; Summers Decl., DE # 49-2, ¶¶ 20, 22.) Band also indicated that Hand of Hope's proposed use was consistent with the Future Land Use Map and the 2030 Comprehensive Plan. (Summers Decl., DE # 49-2, ¶ 22.)

         Hand of Hope submitted a rezoning request to the City in April 2016 requesting the Property be rezoned to office mixed use. (See Am. Compl., DE # 40, Ex. C.) Hand of Hope's application was reviewed at several public meetings, including (1) a neighborhood meeting on 12 February 2016, (2) a Citizen Advisory Council (“CAC”) meeting on 23 February 2016, (3) a second CAC meeting on 26 April 2016, and (4) a hearing of the Raleigh Planning Commission (the “Commission”) on 10 May 2016. (Id. ¶ 37.) At the second CAC meeting, Hand of Hope's application was approved by a vote of 30 to 17. (Id. ¶ 38.) Thereafter, the Commission voted unanimously to recommend approval of Hand of Hope's application to the city council.[5] (Id. ¶ 39.) In addition, the City's zoning staff prepared a report, (id., Ex. D., at 49-50), and a compatibility analysis, (id., Ex. D., at 51-57), setting forth their findings that Hand of Hope's proposed use was compatible with the Future Land Use Map and the policies of 2030 Comprehensive Plan.

         On 5 July 2016, Hand of Hope's rezoning request was considered by the city council at a public hearing. (Id. ¶ 44.) The meeting minutes show that one council member observed that, even though the rezoning request was consistent with the Future Land Use Map, it was inconsistent with six of the policies contained in the 2030 Comprehensive Plan. (See 7/5/16 Raleigh City Council Tr., DE # 15-3, at 4-6.) The council member further stated that the rezoning request was not in the public's interest as proposed because “lot-by-lot piecemeal” rezoning of residential parcels within a larger area designated for office use would “have detrimental impacts on the remaining residents' properties” and “create a less efficient use of office development.” (Id. at 4-5.) The council member then made a motion to deny Hand of Hope's rezoning request as “premature.” (Id. at 6.) The motion was seconded, and the city council voted unanimously to deny the rezoning request.[6] (Id.)

         On 17 August 2016, Hand of Hope commenced the instant lawsuit challenging the City's decision to deny its rezoning request. (See Compl., DE # 1.) Shortly after this suit was filed, the City's attorney informed Hand of Hope that the UDO contained procedures allowing for an official zoning interpretation. (Am. Compl., DE # 40, ¶ 48; Leapley Decl., DE # 15, ¶ 3.) Based on this representation, on 15 September 2016, Hand of Hope submitted a “Code Interpretation Request Form” to Assistant Planning Director Travis Crane. (See Pl.'s App. to Statement of Material Facts, Ex. 6, DE # 49-6.) On the request form, Hand of Hope asked Crane to determine whether its proposed use of the Property would qualify as a civic use under the UDO. (Id. at 3.) The request form went on to describe Hand of Hope as a “religious organization” that intended to use the Property to provide free pregnancy support to clients, including “pregnancy testing, pregnancy counseling, limited obstetrical ultrasounds, Life Skills classes, and post-abortion support counseling.” (Id. at 4.)

         After receiving Hand of Hope's interpretation request, Crane reviewed the submitted materials and also examined Hand of Hope's public website. (Crane Decl., DE # 12, ¶ 14.) On 3 October 2016, Crane sent an email to Hand of Hope's attorney, Noel Sterett, asking 14 follow-up questions about Hand of Hope's proposed use of the Property. (See id., Ex. 8, DE # 12-9.) Hand of Hope submitted a response letter on 19 October 2016. (See id., Ex. 9, DE # 12-10.) In response to Question 4 regarding the percentage of its activities that involved the direct provision of medical services, including pregnancy testing and ultrasounds, Hand of Hope answered:

Hand of Hope does not provide medical treatment, care, or prescribe drugs to the women who come to Hand of Hope for help and information. Every single woman who comes to Hand of Hope is informed of Hand of Hope's Life Skills Program which includes Bible studies and every single woman is offered prayer for themselves and their child. As such, all of Hand of Hope's activities are motivated by their sincerely held religious beliefs and mission and involve prayer and the proclamation of the Gospel: God loves you and has a plan for your life and the life of your child. The vast majority of the women come to Hand of Hope to receive a free and confidential pregnancy test and to learn more about their pregnancy. If a pregnancy test is positive, the women are offered an opportunity to view their baby through the use of a non-diagnostic ultrasound.

(Id. at 2-3.) Because Hand of Hope maintained that its proposed activities did not involve medical services, it did not offer direct responses to Crane's additional questions regarding the number of people it expected to receive medical services onsite, the percentage of the floor area of the building that would be used to provide medical services, and the amount of time a healthcare professional would be present onsite. (Id. at 3, 5.)

         On 1 November 2016, Crane issued an official zoning code interpretation. (See Official Zoning Code Interpretation, DE # 26-7, at 2-4.) The interpretation included Hand of Hope's 19 October 2016 response letter. (See id. at 5-9.) Based on the statements made by Hand of Hope in the response letter, Crane concluded that “the use as described is consistent with the ‘civic' use category, and therefore permitted within the Residential-4 zoning district.” (Id. at 4.) Crane, however, stressed that “[t]he information provided by Hand of Hope in [the] response [letter] was insufficient to conclusively clarify questions related to Hand of Hope's use on the property.” (Id. at 3.) For instance, Crane noted that while Hand of Hope's response letter stated that its intended use of the Property was not medical in nature, this response contradicted statements made by Hand of Hope in its suit against the City, which referred to Hand of Hope's “‘Medical Director' and ‘RN' (presumably Registered Nurse).” (Id.) Due to these discrepancies, Crane noted that if Hand of Hope intended to provide medical treatment, the Property was not a location where a “medical use” could be operated. (Id. at 2-3.) Crane therefore urged Hand of Hope to “notify the Zoning Enforcement Administrator immediately if any of the assumptions set forth in this official zoning code interpretation are partially or wholly erroneous as the applicability of this interpretation may be impacted.” (Id. at 3.)

         The entity that owns A Preferred Women's Health Center appealed Crane's interpretation to the Raleigh Board of Adjustment (the “Board”), and a hearing was held on the matter on 13 February 2017. (Am. Compl., DE # 40, ¶¶ 52-53.) At the hearing, the Board heard testimony from Crane regarding how he made the official zoning interpretation. (Id. at 22-28.) The Board specifically questioned Crane about whether or not a property could have more than one principal use, such as a medical use and a civic use. (Id. at 28.) Crane responded that there could be more than one principal use of a property, and that in such a situation, each identified use of the property would need to comply with the zoning provisions in the UDO. (Id.)

         Following Crane's testimony, the Board heard testimony from Calia Hales, the co-owner and administrator of A Preferred Women's Health Center, who expressed concern that Hand of Hope intended to perform “medical testing” on the Property that fell within the UDO's definition of medical use.[7] (See 2/13/17 Board of Adjustment Hearing Tr., DE # 35, at 16.) Hales testified that the documentation Hand of Hope had submitted to the City showed that it used urine samples to perform physician-quality pregnancy testing, and that federal law required a license in order to test such samples. (Id. at 17.) Additionally, Hales testified that Hand of Hope's use of ultrasounds “to confirm a heartbeat or the presence of a fetus and fetal parts is a confirmation of a viable pregnancy, which is a medical test[].” (Id. at 18.)

         The Board also heard testimony from Sterett and Tonya Baker Nelson, the founder and chief executive officer of Hand of Hope. Sterett iterated Hand of Hope's position that the ultrasounds provided to its clients were “nondiagnostic.” (Id. at 32-33, 44-46.) Sterett stressed that Hand of Hope used ultrasound technology as a tool to communicate its religious message rather than to provide medical care. (Id.) However, he also acknowledged that Hand of Hope had a licensed medical director, and was required to have one in order to operate the ultrasound technology. (Id. at 30, 38.) With respect to Hand of Hope's use of ultrasounds, Nelson explained that the ultrasounds offered at its existing location were performed by registered nurses as required by North Carolina law. (Id. at 41-42.) Nelson further described how the nurses used the ultrasounds to see if “there's a viable pregnancy, the heart is beating, the baby is in the uterus, and . . . the probable gestational age according to [the client's] [last menstrual period].” (Id. at 41.) The medical director of Hand of Hope was not present at the hearing, and Hand of Hope could not provide a response to the Board's questions regarding the percentage of its activities that involved a medical component. (Id. at 45-46.)

         After hearing arguments from the parties, the Board voted 3-2 to reverse the official zoning interpretation. (Id. at 63.) The Certified Board of Adjustment minutes show that the Board made the following relevant “Findings of Fact”: Hand of Hope has a licensed physician serve as a medical director; ultrasounds are performed exclusively by licensed nurses; Hand of Hope keeps records of ultrasounds; the performance of an ultrasound “requires medical knowledge to identify what is seen on the screen”; and the use of ultrasounds to confirm pregnancy “constitutes a diagnostic procedure.” (Certified Board of Adjustment Minutes, DE # 36, at 7.) In addition, the Certified Board of Adjustment minutes show the Board made the following “Conclusions of Law”:

The proposed use of property by Hand of Hope to perform ultrasounds to confirm pregnancy by licensed nurses under the supervision of a medical director is a medical use, and the interpretation by [Crane] that the proposed use is a civic use allowed in the R-4 zoning district must be reversed.


         Following the Board's decision, Hand of Hope amended its complaint in the instant action to set forth the full procedural history of the zoning interpretation process. (See Am. Compl., DE # 40.) In the amended complaint, Hand of Hope alleges that the City's actions in denying it permission to provide free pregnancy support-including the use of limited obstetrical ultrasounds-at the Property violates the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and the First and Fourteenth Amendments of the United States Constitution. (Id. ¶¶ 58-74, 88-101, 110-19, 120-27.) Hand of Hope further claims that the City's actions place an undue burden on a woman's fundamental right to have access to information concerning pregnancy, and violate unspecified constitutional rights of unborn children. (Id. ¶¶ 75-87, 102-109.)

         II. ANALYSIS

         A. Motions for Summary Judgment

         Hand of Hope moves for partial summary judgment against the City with respect to its claims under the equal terms provision of RLUIPA, the Free Speech Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. (Pl.'s Mot., DE # 46, at 1, 2-3.) The City cross-moves for partial summary judgment in its favor on the same three claims. (Def.'s Resp., DE # 54, at 12.) A court need not reach a constitutional question “if there exists an alternative, nonconstitutional basis for [its] decision.” Hoffman v. Hunt, 126 F.3d 575, 582 (4th Cir. 1997). Therefore, the court will first consider Hand of Hope's statutory claim under RLUIPA's equal terms provision, 42 U.S.C. § 2000cc(b)(1), before turning to its constitutional claims.

         1. Standard of Review

         Summary judgment is appropriate where the record, viewed in the light most favorable to the non-moving party, shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A fact is material if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When faced with cross-motions for summary judgment, the court must ask “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251; see also Desmond v. PNGI Charles Town Gamin, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011) (“When cross-motions for summary judgment are before a court, the court examines each motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil Procedure.”).

         The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Specifically, the moving party bears the burden of identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which the moving party believes demonstrate an absence of any genuine issue of material fact. Id. at 323. Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The court must view the evidence and inferences drawn therefrom in the light most favorable to the nonmoving party, Shealy, 929 F.2d at 1011, but the court also must abide by the “affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 ...

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