Mesquite Grove Chapel, an Arizona not-for-profit corporation; v. CARMINE DEBONIS, JR., in his capacity as Pima County Chief Zoning Inspector

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MESQUITE GROVE CHAPEL, an
Arizona not-for-profit corporation; et al.,
Plaintiffs - Appellants,
v.
CARMINE DEBONIS, JR., in his capacity
as Pima County Chief Zoning Inspector,
Defendant - Appellee.
No. 13-16633
D.C. No. 4:10-cv-00769-JR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jacqueline Rateau, Magistrate Judge, Presiding
Argued and Submitted November 17, 2015
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
Mesquite Grove Chapel (“Mesquite”) and Debi Fazio appeal the district
court’s determination on summary judgment that Pima County Chief Zoning
Inspector Carmine DeBonis, Jr. (the “Inspector”) did not substantially burden
FILED
DEC 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Mesquite’s religious exercise under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”). After Mesquite applied for permits to develop land
zoned for church use, the Inspector determined that Mesquite’s proposed use did
not meet the Pima County zoning code’s definition of “church.” The Pima County
Board of Adjustment affirmed. Mesquite brought this action in Arizona Superior
Court alleging violations of the First Amendment and RLUIPA alongside state law
claims.
The Defendants removed the case to federal court. On January 4, 2013, the
district court entered an order granting summary judgment to the Defendants on all
claims. On the federal claims against the Inspector, it held that he had absolute
immunity and that there was insufficient evidence for any fact-finder to find a
substantial burden under RLUIPA. On June 19, 2013, in response to Mesquite’s
Rule 59 motion for a new trial, the district court reversed its absolute immunity
determination, but affirmed its prior RLUIPA decision. That disposition, however,
contained a clerical error causing it to deny Defendant’s motion for summary
judgment rather than grant it. On July 17, 2013, after a Rule 60 motion, the district
court corrected the error.
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Mesquite filed a notice of appeal on August 13, 2013. On appeal, it
challenges the district court’s grant of summary judgment to the Inspector on the
RLUIPA claim and, in response, the Inspector invokes absolute immunity.
We have jurisdiction to consider the appeal of the order granting summary
judgment under 28 U.S.C. § 1291. The deadline to file a notice of appeal can be
tolled twice by post-judgment motions if the first such motion substantively alters
the judgment. Wages v. IRS, 915 F.2d 1230, 1233–34 n.3 (9th Cir. 1990). Because
the district court mistakenly denied the Defendant’s motion for summary judgment
in the order disposing of the first post-judgment motion, the district court effected
a substantive change in the original grant of summary judgment. Thus, the notice
of appeal was timely and we have jurisdiction.
We review summary judgment decisions de novo. San Jose Christian Coll.
v. City of Morgan Hill, 360 F.3d 1024, 1029–30 (9th Cir. 2004). The district court
correctly held that the Inspector does not have absolute immunity. Absolute,
quasi-judicial immunity exists if the government official can show that his or her
role is “functional[ly] comparab[le]” to that of a judge. Antoine v. Byers &
Anderson, Inc., 508 U.S. 429, 436 (1993) (alterations in original) (citations
omitted); Butz v. Economou, 438 U.S. 478, 512 (1978). To be functionally
comparable, the official must be constrained by some of the safeguards present in a
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judicial setting. Butz, 438 U.S. at 512–13. The purpose of this immunity is to
ensure that decisionmakers are not influenced by the threat of litigation. Id. at
508–09.
The Inspector is not functionally comparable to a judge. Although the
Inspector’s decisions are reviewable on administrative and judicial appeal and land
use decisions can be “contentious,” Buckles v. King Cty., 191 F.3d 1127, 1136 (9th
Cir. 1999), proceedings before the Inspector are not adversarial and they lack
procedural protections. The Inspector also provided insufficient information to
conclude that the he is independent. Finally, the Inspector’s role is more executive
than judicial: the Inspector fails to show that he is bound to render a decision rather
than advise on compliance. The Inspector is not entitled to absolute immunity.
Still, Mesquite has not shown a substantial burden on its religious exercise
under RLUIPA. 42 U.S.C. § 2000cc(a)(1). We “examine the particular burden
imposed” to determine whether it is substantial, that is, “oppressive to a
significantly great extent.” Int’l Church of Foursquare Gospel v. City of San
Leandro, 673 F.3d 1059, 1066–67 (9th Cir. 2011) (internal quotation marks
omitted). The primary burdens presented here—relocating or submitting a
modified application—were not substantial, especially because Mesquite presented
no evidence that other sites are unsuitable. Additionally, the Inspector’s decision
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was not arbitrary or made in bad faith. Mesquite has failed to show a substantial
burden on its religious exercise within the meaning of RLUIPA.
The clerk shall amend the docket to reflect that Carmine DeBonis, Jr. is the
sole appellee in light of the parties’ agreement at oral argument.
AFFIRMED.
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