CALVARY CHAPEL BIBLE FELLOWSHIP, a California non-profit religious corporation v. County of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CALVARY CHAPEL BIBLE
FELLOWSHIP, a California non-profit
religious corporation,
Plaintiff-Appellant,

v.

C
OUNTY OF RIVERSIDE,
Defendant-Appellee.
No. 17-56857

D.C. No.
5:16-cv-00259-
PSG-DTB

OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted October 24, 2019
Pasadena, California

Filed February 4, 2020

Before: Consuelo M. Callahan, John B. Owens,
and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

2 CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE

SUMMARY
*

Civil Rights
The panel affirmed the district court’s grant of summary
judgment to Riverside County in an action brought by
Calvary Chapel Bible Fellowship, a non-denominational
Christian church, asserting a facial challenge to the county
zoning ordinance under the Religious Land Use and
Institutionalized Persons Act.
After Calvary Chapel bought its first parcel of land and
constructed a church on the property, Riverside enacted
more restrictive zoning ordinances that removed religious
assemblies from the list of permissible uses in the zone
where the Church is located. Calvary Chapel has operated a
legal non-conforming use since. Calvary Chapel
subsequently purchased a second parcel of land and hoped
to expand its facilities. It asked Riverside to amend its
zoning ordinance to specifically include religious assemblies
as permitted uses in the zoned area. It also submitted an
application to proceed with a proposed expansion, which
remains pending. Calvary Chapel then brought this facial
challenge to the zoning ordinance.
The panel held that because, on its face, Riverside’s
zoning ordinance permits religious assemblies as special
occasion facilities, the ordinance does not treat religious
assemblies on less than equal terms with secular assemblies.
Thus, the panel held that under the plain terms of the
ordinance, which was consistent with Riverside’s

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE 3

representations both in its briefs and at oral argument,
Calvary Chapel is not prohibited from pursuing its religious
practices. It can pursue the proposed expansion of its
religious facilities as a special occasion facility. As such, the
panel concluded that Calvary Chapel had failed to establish
a prima facie violation of the Religious Land Use and
Institutionalized Persons Act’s (RLUIPA) equal terms
provision on a facial challenge.
The panel declined to consider, on appeal in the first
instance, Calvary Chapel’s new claim that Riverside violated
RLUIPA’s nondiscrimination provision by needlessly
requiring it to apply for a text amendment to the zoning
ordinance. The panel held that Calvary Chapel could not
change the gravamen of its non-discrimination claim on
appeal from a facial challenge of the ordinance to a challenge
of Riverside’s text amendment process.

COUNSEL

Robert H. Tyler (argued) and James A. Long, Tyler &
Bursch LLP, Murrietta, California, for Plaintiff-Appellant.

Alan Diamond (argued) and Timothy T. Coates, Greines
Martin Stein & Richland LLP, Los Angeles, California;
James E. Brown, Assistant County Counsel; Melissa Renee
Cushman, Deputy County Counsel; Office of the County
Counsel, Riverside, California; for Defendant-Appellee.

4 CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE

OPINION
R. NELSON, Circuit Judge:
The district court granted summary judgment to
Riverside County on Calvary Chapel Bible Fellowship’s
(“Calvary Chapel”) facial challenge to the county zoning
ordinance under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§§ 2000cc–2000cc-5. Calvary Chapel appeals. Because the
plain terms of the ordinance treat religious assemblies on
equal terms with secular assemblies, we affirm the district
court’s grant of summary judgment.
I
Calvary Chapel, a non-denominational Christian church
located in the “Temecula Wine Country” region of Riverside
County, California (“Riverside”), bought its first parcel of
land in the Citrus-Vineyard Zone (“C/V Zone”) in 1996. At
that time, churches and other places of religious worship
were permissible upon approval of a public use permit, and
Calvary Chapel obtained a permit to construct a church on
its property. In 1999, Riverside enacted more restrictive
zoning ordinances, removing religious assemblies from the
list of permissible uses in the C/V Zone. Calvary Chapel has
operated as a legal non-conforming use since.
The C/V Zone is intended to “encourage agricultural
cultivation, vineyards, and wineries, that would preserve the
rural lifestyle, wine-making atmosphere and long term
viability of the wine-industry[.]” Riverside Cty., Cal.,
Ordinance 348, § 14.71 (2016). Accordingly, vineyards,
groves, crops, orchards, gardens, and pastures for raising
livestock are all permitted as of right in the C/V Zone. Id.
§ 14.73(A). But not all uses allowed in the C/V Zone are

CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE 5

purely agricultural. Eighteen-hole golf courses, child day
care centers, bed and breakfasts, country inns, hotels,
restaurants, spas, cooking schools, wine sampling rooms,
retail wine sale stores, and special occasion facilities are all
permissible in the C/V Zone upon approval of a plot plan.
Id. § 14.73(B).
In 2009, Calvary Chapel, allegedly unaware Riverside
had changed the zoning ordinance, purchased a second
parcel of land. Calvary Chapel hoped to expand its church
on the vacant parcel by building a larger sanctuary, a special
occasion facility, an open-air wedding venue, a church
administration building, and a single-family residence.
After realizing the impact of the 1999 amendments, Calvary
Chapel asked Riverside to amend its ordinance.
Riverside tentatively approved a draft ordinance to
permit religious land use in the C/V Zone. But the draft
ordinance was removed from the County Planning
Commission’s agenda and never adopted; Riverside instead
approved a new zoning ordinance that allowed the County
Planning Director to permit land uses that were
“substantially the same in character and intensity as uses
already permitted within a County zone.” Riverside Cty.,
Cal., Ordinance 348.4713, § 3.3, invalidated by Protect
Wine Country v. County of Riverside, No. RIC1108020 (Cal.
Super. Ct. May 06, 2011) (BL, Court Dockets, Riverside
County, Civil and Small Claims).
Upon Calvary Chapel’s request, the Planning Director
found the proposed expansion was the same in character and
intensity as other uses already permitted in the C/V Zone.
He informed Calvary Chapel that it must submit a plot plan
application to proceed with the expansion. Calvary Chapel
submitted its plot plan. But two months later, a group called
“Protect Wine Country” sued Riverside, challenging the

6 CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE

validity of the “same in character and intensity” provision.
The Superior Court entered judgment in favor of Protect
Wine Country and Riverside did not appeal. Calvary
Chapel’s plot plan application was thus invalidated.
Meanwhile, Riverside began developing the Wine
Country Community Plan (“WCCP”), which encompassed
several zones in Wine Country, including the C/V Zone. At
issue in this case are the Wine Country – Winery and Wine
Country – Winery Existing Zones (“Wine Country Zones”).
Calvary Chapel repeatedly requested that Riverside
include religious assemblies as permitted uses in the WCCP,
to no avail. Instead, Riverside carved out Calvary Chapel’s
two parcels from the WCCP, leaving them part of the C/V
Zone, with surrounding properties regulated by the WCCP.
Protect Wine Country sued Riverside again, this time
alleging that excluding Calvary Chapel’s parcels from the
WCCP constituted illegal spot zoning. Riverside and Protect
Wine Country settled the lawsuit, with Riverside agreeing
any amendments to the C/V Zone would also be made to the
zones in the WCCP.
In 2012, Calvary Chapel again asked Riverside to amend
the zoning ordinance to specifically permit churches in the
C/V Zone. It also submitted a plot plan application to
proceed with its proposed expansion on its vacant parcel.
Both applications are still pending because environmental
review is ongoing.
In 2016, Calvary Chapel brought this facial challenge to
the zoning ordinance. Two issues are relevant on this
appeal: first, whether the sections of Riverside’s zoning
ordinance governing the C/V and Wine Country Zones
violate RLUIPA’s equal terms provision; and second,

CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE 7

whether those sections violate RLUIPA’s nondiscrimination
provision.
Calvary Chapel argued below that Riverside violated
RLUIPA’s equal terms provision by prohibiting religious
assemblies, but permitting “special occasion facilities,
hotels, resorts, golf courses, clustered residential
subdivisions, professional culinary academy, bed and
breakfasts, wineries, wine club activities, wine club events,
Winegrowers Trade Association Events, gift sales, country
inns, restaurants, bed and breakfast inns, hotels, spas, and
cooking schools” in the C/V and Wine Country Zones. In
short, Calvary Chapel claimed its proposed religious use was
not permitted by any of these categories.
Calvary Chapel also contended that Riverside violated
RLUIPA’s nondiscrimination provision because the
ordinances were enacted in a discriminatory manner. In
support, Calvary Chapel alleged that Riverside enacted
ordinances restricting religious land use after local citizens
and vintners from the wine industry voiced public anti-
church sentiment. Calvary Chapel further argued the
settlement between Protect Wine Country and Riverside
demonstrated “severe animus” against religion, in contrast
to Riverside’s previous willingness to accommodate
religion. Calvary Chapel also argued that its exclusion from
an ad hoc committee to assist Riverside in the zoning process
evidenced discrimination.
The parties filed motions for summary judgment, and the
district court issued judgment in favor of Riverside. The
district court concluded Riverside had not violated
RLUIPA’s equal terms provision because both religious and
secular assemblies are allowed in the C/V and Wine Country
Zones if they are “special occasion facilities,” which
requires, among other things, that the facilities are used “for

8 CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE

a specific period of time in return for compensation.”
Ordinance 348 §§ 14.72(H), 14.91(X). As to the
nondiscrimination claim, the district court held Calvary
Chapel failed to show Riverside had discriminatory intent.
This appeal followed.
We review the district court’s grant of summary
judgment de novo. Burrell v. McIlroy, 464 F.3d 853, 855
(9th Cir. 2006).
II
We begin with Calvary Chapel’s equal terms claim.
RLUIPA is plain: “[n]o government shall impose or
implement a land use regulation in a manner that treats a
religious assembly or institution on less than equal terms
with a nonreligious assembly or institution.” 42 U.S.C.
§ 2000cc(b)(1). Furthermore, RLUIPA requires that courts
construe the statute “in favor of a broad protection of
religious exercise, to the maximum extent permitted[.]” Id.
§ 2000cc-3(g). To establish a prima facie equal terms
violation, Calvary Chapel must show “(1) there [is] an
imposition or implementation of a land-use regulation,
(2) by a government, (3) on a religious assembly or
institution,” and (4) the land-use regulation treats a religious
assembly or institution “on less than equal terms with a
nonreligious assembly or institution.” Centro Familiar
Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163,
1170–71 (9th Cir. 2011) (internal quotation marks omitted).
There is no dispute that the first three factors are satisfied
here. Calvary Chapel’s burden, then, is to show that
Riverside’s zoning ordinance treats a religious assembly or
institution unequally compared to a secular assembly or
institution. As this is a facial challenge, we consider only
the text of the zoning ordinance, not its application. At least

CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE 9

on the face of the ordinance, secular and religious places of
assembly are treated the same. Both are permitted in the C/V
Zone only if they meet the requirements of a “special
occasion facility.” Churches and other houses of worship
are permitted in the C/V Zone if, at some point, they rent
their facilities out in return for compensation, in addition to
meeting the other zoning requirements. And nothing in the
text of the ordinance prevents churches from holding regular
worship services or other religious assemblies in their
special occasion facilities. Secular assemblies are treated on
the same terms as religious assemblies: they must also
qualify as special occasion facilities to obtain a public use
permit in the C/V Zone. In other words, the ordinance places
facilities that do not plan to charge a fee on equal terms,
regardless of whether they are religious or secular. In short,
the zoning ordinance as written permits religious uses as
contemplated by Calvary Chapel. Thus, there is no equal
terms violation.
Indeed, Riverside agrees Calvary Chapel may use a
special occasion facility for religious purposes. Riverside
made the following representations in briefing and at oral
argument:
• Calvary Chapel’s currently existing church may
continue to exist and operate in the C/V Zone as a
nonconforming use in its current form in perpetuity;
• Calvary Chapel (or any other house of worship) can
build in the C/V and Wine Country Zones, provided

10 CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE

it meets all requirements of a special occasion facility
such as receiving compensation;
1

• special occasion facilities may be used for worship
services on a regular basis; and
• secular assemblies are excluded from the zone on the
same terms as religious assemblies. For example, if
an opera house did not plan to use its facility in return
for compensation, it also could not build a place of
assembly in the C/V and Wine Country Zones.
We acknowledge that one of Riverside’s Federal Rule of
Civil Procedure Rule 30(b)(6) witnesses testified that a
church could not conduct regular worship services in the
C/V Zone, even if it rented out its facility for weddings or
other events. But this testimony was a pure legal conclusion
and is not binding on Riverside, at least given the subsequent
explanation and concessions Riverside has provided. Cf.
Snapp v. United Transp. Union, 889 F.3d 1088, 1104 (9th
Cir. 2018), cert. denied sub nom. Snapp v. Burlington N.
Santa Fe Ry. Co., 139 S. Ct. 817 (2019) (“The Rule 30(b)(6)
testimony also is not binding against the organization in the
sense that the testimony can be corrected, explained and
supplemented . . . .” (citation omitted)). The 30(b)(6)
witness’s position is inconsistent with both the text of the
ordinance and Riverside’s representations before this Court.
Furthermore, when reviewing a facial challenge, we are
limited to reviewing the text of the ordinance itself, not what
others have said the statute means. How the statute has been

1
At oral argument, Riverside’s counsel suggested that Calvary
Chapel might be able to meet the compensation requirement by renting
the facilities to another organization for $1 per year.

CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE 11

interpreted and applied by local officials is the province of
an as-applied challenge, which is not before us today.
In light of our reading of the plain terms of the ordinance,
consistent with Riverside’s representations both in its briefs
and at oral argument, Calvary Chapel is not prohibited from
pursuing its religious practices under the zoning ordinance.
It can pursue its proposed expansion as a special occasion
facility. As such, Calvary Chapel has failed to establish a
prima facie violation of RLUIPA’s equal terms provision on
a facial challenge.
III
Calvary Chapel also claims, for the first time on appeal,
that if religious assemblies are permitted in the C/V Zone as
special occasion facilities, Riverside violated RLUIPA’s
nondiscrimination provision by “needlessly” requiring it to
apply for a text amendment to the zoning ordinance. But in
the proceedings below, Calvary Chapel’s nondiscrimination
claims were limited to a facial challenge to the ordinance
itself. With limited exceptions not applicable here, we will
not consider issues raised for the first time on appeal. United
States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990).
Calvary Chapel may not change the gravamen of its non-
discrimination claim on appeal from a facial challenge of the
ordinance to a challenge of Riverside’s text amendment
process. Accordingly, we decline to consider Calvary
Chapel’s new nondiscrimination claim on appeal in the first
instance.
IV
Because, on its face, Riverside’s zoning ordinance
permits religious assemblies as special occasion facilities,
the ordinance does not treat religious assemblies on less than

12 CALVARY CHAPEL BIBLE FELLOWSHIP V. RIVERSIDE

equal terms with secular assemblies. Because this is a facial
challenge, our inquiry ends there. Any consideration of the
ordinance’s application must be left for another day.
AFFIRMED.