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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

May 2, 2019

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 the City of Raleigh (the “City”). (DE # 84.) Plaintiff, A Hand of Hope Pregnancy Resource Center (“Hand of Hope”), filed a response in opposition. (DE # 92.) The City filed a reply. (DE # 101.) The issues raised have been fully briefed and are therefore ripe for discussion.

         I. BACKGROUND

         Hand of Hope operates a pregnancy resource center called Your Choice Pregnancy Clinic in Raleigh, North Carolina, (Second Am. Compl. (DE # 98), ¶ 3), at 1701 Jones Franklin Road, (Pl. Resp. to Def.'s Statement of Facts (DE # 93), at 1). In December 2015, Hand of Hope purchased a parcel of land at 1522 Jones Franklin Road (the “Property”) with plans of relocating Your Choice Pregnancy Clinic to that location. (Second Am. Compl. (DE # 98), ¶¶ 16-20.) The Property is located immediately adjacent to the abortion clinic and in an area zoned as Residential-4 with Special Highway Overlay District-2. (Id.)

         The City's zoning procedures and regulations are contained 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 the uses allowed as a matter of right within each zoning district. (See UDO Excerpt (DE # 12-3), at 3-6.) “Civic uses, ” defined 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, ” are permitted within residential zones without further approval by the City. (Id. at 4.) “Medical uses, ” defined as “[facilities] providing medical or surgical care to patients, ” are not permitted within residential zones. (Id. at 4, 12.)

         After purchasing the Property, Hand of Hope sought guidance from the City regarding whether its proposed use of the Property was permissible. (Second Am. Compl. (DE # 98), ¶ 36; Summers Decl. (DE # 49-2), ¶¶ 17-18.) The City's zoning officials advised Hand of Hope that rezoning would be necessary. (Second Am. Compl. (DE # 98), ¶ 36; Summers Decl. (DE # 49-2), ¶¶ 17-18.) On 8 January 2016, Hand of Hope representatives attended a pre-application meeting with Daniel Band, the City's Long Range Planner, and Planner Vivian Ekstrom. (Summers Decl. (DE # 49-2), ¶ 20.) Band indicated that Hand of Hope's use was consistent with Office-Mixed Use zoning, and that the rezoning request was consistent with the City's Long Range plan. (Id. at ¶ 22.) Accordingly, Hand of Hope applied to have the Property rezoned as Office-Mixed Use in April 2016. (Second Am. Compl. (DE # 98), ¶ 35.)

         The rezoning 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.) The CAC approved Hand of Hope's application by a vote of 30 to 17. (Id. ¶ 38.) The Commission found that the rezoning was consistent with the 2030 Comprehensive Plan for the City of Raleigh (“2030 Comprehensive Plan”), reasonable and in the public interest, and compatible with the surrounding area. (Id. ¶¶ 40-42.) Accordingly, the Commission voted unanimously to recommend approval of the application to the City Council. (Id. ¶ 39.) The City's zoning staff also prepared a report and compatibility analysis, finding Hand of Hope's use compatible with the surrounding area. (Id. ¶ 43.)

         On 17 May 2016, the City Council was provided the Commission's report and recommendations. (5/17/16 Meeting Minutes Excerpt (DE # 14-1).) At this meeting, the City moved that the rezoning request be scheduled for public hearing on 21 June 2016. (5/17/16 Raleigh City Council Tr. (DE # 15-1), at 3-4.) On 21 June 2016, Senior Planner Bynum Walter presented the recommendations of the Commission and the CAC to the City Council. (6/21/16 Meeting Minutes Excerpt (DE # 14-1), at 2.) The City also heard comments from several individuals affiliated with Hand of Hope, who discussed its religious mission. (6/21/16 Raleigh City Council Tr. (DE # 15-2), at 7-13.) Additionally, the City heard statements from several individuals affiliated with A Preferred Women's Health Center, an abortion clinic that neighbors the Property. Calla Hales, administrator of the clinic, spoke in opposition to rezoning for the “ministry.” (See id. at 16.) Sharon Mixon also spoke in opposition, noting “this business is not a medical facility. It's a ministry.” (Id. at 14.) The hearing was ultimately continued to 5 July 2016. (Id. at 22.)

         Prior to the 5 July 2016 hearing, council-members Kay Crowder and Mary-Ann Baldwin asked Assistant Planning Director Travis Crane “to draft findings and reasons” to deny Hand of Hope's rezoning request. (Depo. of Travis R. Crane Excerpt (DE # 94-4), at 21-25.) Crane had not previously been asked to prepare such findings nor was he provided reasons upon which to base the denial. (Id.) Crane prepared the requested findings and reasons along with the City Attorney. (Id. at 23.) He did not consult Ekstrom, the assigned planner, or Walter, the supervising senior planner. (Id. at 19, 26.) These findings were cited by council-member Baldwin at the 5 July 2016 meeting, in support of her motion to deny Hand of Hope's rezoning request as “premature.” (See 7/5/16 Raleigh City Council Tr. (DE # 15-3), at 6.) Thereafter, the City Council voted unanimously to deny the request. (Id.)

         Hand of Hope commenced this action, challenging the City's denial of its request, on 17 August 2016. (See Compl. (DE #1).) On 8 September 2016, the City indicated that Hand of Hope may be able to operate on the Property without having the Property rezoned. (Second Am. Compl. (DE # 98), ¶ 48.) Upon advice from the City, Hand of Hope submitted a “Code Interpretation Request Form” to Crane on 15 September 2016, to determine whether its activities would be considered “civic use.” (Id. ¶¶ 48-49.) After his investigation, which included asking a number of follow-up questions of Hand of Hope and reviewing its website, Crane issued an official zoning code interpretation on 1 November 2016. (See Official Zoning Code Interpretation (DE # 26-7), at 2-4.) This interpretation found 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, highlighted discrepancies in the information provided by Hand of Hope, and reiterated that the Property was not suitable for “medical use.” (Id. at 2-3.)

         In December 2016, the entity that owns A Preferred Women's Health Center appealed Crane's interpretation to the Raleigh Board of Adjustment (the “Board”). (Second Am. Compl. (DE # 98), ¶ 52.) The Board conducted a hearing on 13 February 2017. At the hearing, Crane testified regarding his interpretation and, when asked, that a property could have more than one principal use. (2/13/17 Bd. of Adjustment Hearing Tr. (DE # 35), at 28.) The Board also heard testimony from Hales, administrator of A Preferred Women's Health Center, who expressed concern that Hand of Hope intended to perform “medical testing” on the Property. (Id.) Noel Sterett, counsel for Hand of Hope, testified regarding Hand of Hope's mission and claimed that the ultrasounds were provided as a means to communicate a religious message. (Id. at 32-33, 44-46.) Tonya Baker Nelson, founder and chief executive officer of Hand of Hope, testified that the ultrasounds were performed by registered nurses and used to determine whether there is a viable pregnancy and the likely gestational age. (Id. at 41.) Hand of Hope could not, at that time, provide the percentage of its activities involving a medical component. (Id. at 45-46.) The Board voted 3-2 to reverse the official zoning interpretation and held that Hand of Hope's proposed use was inconsistent with the civic use category. (Id. at 63.)

         Hand of Hope filed an amended complaint in April 2017, and in June of that year the parties cross-moved for summary judgment as to Hand of Hope's equal terms claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), free speech claim, and equal protection claim. (DE ## 46, 54.) On 27 July 2018, the court denied Hand of Hope's motion for a preliminary injunction, granted the City's motion for summary judgment as to Hand of Hope's free speech and equal protection claims, and denied the summary judgment motions on the equal terms claim. (DE # 83.) On 30 July 2018, the City moved for summary judgment on Hand of Hope's substantial and undue burden claims under RLUIPA. (DE # 84.) In light of the discovery conducted since the first motion for summary judgment, the City also asked the court to reconsider, or in the alternative, consider a second motion for summary judgment as to Hand of Hope's equal terms claim. (Def.'s Mem. Supp. Mot. Summ. J. (DE # 87), at 19.) Thereafter, Hand of Hope effectively dismissed its undue burden claims. (See Mot. for Leave (DE # 96), at 1; Second Am. Compl. (DE # 98).)

         II. ANALYSIS

         A. ...

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