Merrimack Cngre v. Town of Merrimack 10-CV-581-JD 03/31/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Merrimack Congregation of Jehovah's Witnesses

v. Civil No. 10-cv-581-JD Opinion No.

Town of Merrimack and Merrimack Zoning Board of Adjustment

O R D E R

After the Merrimack Zoning Board of Adjustment ("ZBA")

denied the application of the Merrimack Congregation of Jehovah's

Witnesses ("Congregation") for a special exception to build a

church in a residential district, the Congregation filed suit,

contending the decision was unconstitutional. The Congregation

moved for a preliminary injunction to bar the ZBA from enforcing

the ordinance that requires a special exception. The magistrate

judge held a hearing and issued a report and recommendation that

the preliminary injunction be denied. The Congregation objects

to the report and recommendation, and the Town of Merrimack and

the ZBA filed a response.

Standard of Review

A party may file an objection to the magistrate judge's

proposed findings and recommendations within fourteen days after service.

(b)(1); Fed. R. Civ. P. 72(b)(2). When

an objection is filed, the court must "make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is made."

§ 636(b)(1). "[T]he court may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the

magistrate judge." Id.

In deciding whether to grant a preliminary injunction, the

court considers four factors: "(1) whether [the moving party]

ha[s] shown a likelihood of success on the merits, (2) whether

[the moving party] ha[s] shown that it would suffer irreparable

harm if the injunction was denied, (3) the balance of the

relevant hardships, and (4) any impact that the court's ruling

may have on the public interest." ANSYS, Inc. v. Computational

Dynamics N. Am., Ltd.,

(1st Cir. 2010). The

likelihood of success is the most important factor.

Background

The Congregation wants to build a meeting place, known as a

"Kingdom Hall," in the Town of Merrimack. The Town of Merrimack

Zoning Ordinance and Building Code ("Zoning Ordinance") permits

churches to locate in the General Commercial District and in two

Industrial Districts. The Congregation, however, wants to build

the Kingdom Hall on an 11.9 acre parcel of land at 63 Wire Road,

2 which is in a Residential District.

The Zoning Ordinance requires a special exception to build a

church in a Residential District. Section 2.02.1(B). Section

2.02.1(B)(1) provides that the "Zoning Board of Adjustment may

grant a special exception for the following use of lands within

the residential district: 1. Churches, provided that it finds

that all of the following conditions are met:

a) The specific site is an appropriate location for such a use or uses in terms of overall community development. b) The use as developed will not adversely affect the neighborhood and shall produce no diminution of real estate values in the neighboring area. c) There will be no nuisance or serious hazard to vehicles or pedestrians. d) That an adequate parking area is provided for motor vehicles on the premises. e) A buffer shall be erected and maintained to screen existing residential uses. Buffers may be fence screens, dense plantings of suitable trees and shrubbery, or naturally occurring shrubs and trees. f) The use as developed will be restricted for church purposes only. No commercial use of a church within the residential zone will be allowed.

On September 8, 2010, the Congregation applied to the ZBA

for a special exception to allow construction of a Kingdom Hall

on Wire Road. The ZBA held a hearing on September 23, 2010, and

voted to deny the application. The Congregation's request for a

rehearing was denied on November 18, 2010. This suit followed.

The Congregation's motion for a preliminary injunction was

referred to the magistrate judge for a report and recommendation.

3 The magistrate held a hearing on January 19, 2011. On January

24, 2011, the magistrate issued her report and recommendation

that the motion for a preliminary injunction be denied because

the Congregation had not shown a likelihood of success on the

merits of its constitutional challenge to the Zoning Ordinance.

Discussion

The Congregation challenges the report and recommendation

that the preliminary injunction be denied because the

Congregation failed to show a likelihood of success on the

merits. The court's de novo review is limited to the issues

specifically raised in the Congregation's objection. Merrimack

and the ZBA support the report and recommendation.

A. Nature of the Relief Requested

The Congregation contends that the magistrate judge imposed

a higher preliminary injunction standard based on a misconception

that the Congregation was seeking mandatory injunctive relief. A

mandatory injunction "requires affirmative action by the non­

moving party in advance of trial . . . and alters rather than

preserves the status quo . . . ." Braintree Labs., Inc. v.

Citigroup Global Mkts. Inc.,

(1st Cir. 2010) .

Because such relief alters the status quo, a mandatory injunction

should be granted only "when the exigencies of the situation

4 demand such relief," that is, when the relief is necessary to

prevent injury.

The Congregation argues that it is seeking to enjoin the

town and the ZBA from enforcing the special exception requirement

against it. Framed in those terms, the Congregation asserts that

it is seeking a traditional, prohibitory injunction. Despite the

Congregation's characterization of its request, the effect of the

injunctive relief it seeks would be to require the town to allow

the Congregation to build a church in a residential district

without a special exception, which is contrary to the existing

ordinance and would alter the status quo. Therefore, the

injunctive relief the Congregation seeks is mandatory.

The magistrate judge, however, denied the Congregation's

motion based on its failure to show a likelihood of success, not

because the Congregation failed to show that the exigencies in

this situation required injunctive relief. Therefore, the

standard for a mandatory injunction did not affect the outcome.

B. Likelihood of Success

The Congregation moved for a preliminary injunction on the

ground that Section 2.02.1 of the Zoning Ordinance is

unconstitutional because "as applied to churches or other uses

5 protected by the First Amendment, [the ordinance] constitutes a

facially unconstitutional prior restraint." Motion, dkt. 5, 5 3.

In its supporting memorandum, the Congregation asked the court

"to enjoin the Town of Merrimack's enforcement of Section 2.02.1

of the Merrimack Zoning Ordinance as a facially unconstitutional

prior restraint in violation of the First Amendment to the United

States Constitution." Mem., dkt. 5-1, at 1. Although the

Congregation did not specify in the complaint which First

Amendment rights it alleged were violated by Section 2.02.1, the

Congregation explained for purposes of its motion for a

preliminary injunction that it intended to assert a hybrid

combination of First Amendment rights of speech, assembly, and

religious exercise. Therefore, the likelihood of success factor

is considered only in the context of the Congregation's claim

that the ordinance is facially unconstitutional as a prior

restraint on free speech, religion, and association.1

1. Hybrid Rights

At the hearing, the Congregation argued that it was

1To the extent the Congregation suggests a broader claim in its objection to the magistrate judge's report and recommendation, any new grounds and reasoning will not be considered. See Santiago v. Canon U.S.A., Inc.,

(1st Cir. 1998); Borden v. Sec'v of Health & Human Servs., 836 F .2d 4, 6 (1st Cir. 2987).

6 asserting a hybrid combination of First Amendment rights, as

suggested in Employment Div., Or. Dep't of Human Resources v.

Smith,

(1990). In Smith the Court noted

that "[t]he only decisions in which [the Court had] held that the

First Amendment bars application of a neutral, generally

applicable law to religiously motivated action have involved not

the Free Exercise Clause alone, but the Free Exercise Clause in

conjunction with other constitutional protections . . . ."

. The Court also noted that strict scrutiny had been

applied when parental interests were combined with free exercise

of religion, as in Wisconsin v. Yoder,

(1972).

Smith,

-82 & n.l.

After discussing the combination of rights cases, the Court

stated: "The present case does not present such a hybrid

situation, but a free exercise claim unconnected with any

communicative activity or parental right. Respondents urge us to

hold, quite simply, that when otherwise prohibitable conduct is

accompanied by religious convictions, not only the convictions

but the conduct itself must be free from governmental regulation.

We have never held that, and decline to do so now."

.

The circuit courts disagree about whether that discussion in

Smith is dicta. See Combs v. Homer-Center Sch. Dist.,

-47 (3d Cir. 2008) (citing cases); see also McCullen v.

Coaklev,

, 419 n.266 (D. Mass. 2008).

7 To the extent Smith is understood to provide support for

hybrid rights claims, strict scrutiny was addressed only in the

combination of parental rights and free exercise rights, as

presented in Yoder. See Parker v. Hurlev,

(1st Cir. 2008). Section 2.20.1 on its face does not implicate

parental rights, and the Congregation does not raise parental

rights. In addition, to succeed on a hybrid rights claim, a

plaintiff must show a constitutional burden on a First Amendment

right. Parker,

; Civil Liberties for Urban

Believers v. Chicago,

(7th Cir. 2003).

Therefore, the Congregation's theories that Section 2.20.1

violates First Amendment rights are considered as follows.

2. Freedom of Expression

The First Amendment states that "Congress shall make no law

. . . abridging the freedom of speech." U.S. Const., amend. I.

Constitutionally protected "speech" includes certain symbolic

speech and expressive conduct. See, e.g., Rumsfeld v. Forum for

Academic & Institutional Rights, Inc.,

(2006)

Virginia v. Black,

(2003); Texas v. Johnson

(1989); Spence v. Washington,

(1974); United States v. O'Brien,

(1968) .

Section 2.02.1 conditions construction of a church in a Residential District on satisfying certain factors. Therefore,

the restricted conduct is constructing a building to be used for

religious purposes in a Residential District.2 Courts have held

that, absent other expressive conduct, limitations on the

geographical location of a religious institution do not implicate

the right to free expression under the First Amendment. See,

e.g., Tenaflv Eruv Ass'n, Inc. v. Borough of Tenaflv,

, 163 (3d Cir. 2002) (noting that the act of constructing

houses of worship implicates the free exercise clause not the

free speech clause and citing cases); Grace Church of Roaring

Fork Valiev v. Bd. of County Comm'rs of Pitkin County, Colo.,

(D. Colo. 2010) (holding, in part, that

"denial of the Church's proposal to build a worship facility at a

particular location did not improperly regulate the Church's

dissemination of its religious message"); Adhi Parasakthi

Charitable, Med., Educ., & Cultural Soc. of N. Am.,

(E.D. Pa. 2010); Dixon v. Town of Coats,

, at *7 (E.D.N.C. June 9, 2010); C.L.U.B. v. Chicago,

(N.D. 111. 2001); cf. Cornerstone Bible

Church v. City of Hastings,

(8th Cir. 1991)

2The cases the Congregation cites to show that religious speech is protected under the free speech clause are inapposite to the circumstances in this case. Section 2.02.1 restricts the location of churches.

9 (considering location of church under right to free speech with

respect to time, place, and manner restriction); Vineyard

Christian Fellowship of Evanston v. Evanston,

(N.D. 111. 2003) (noting disagreement about whether

zoning regulation of the location of a church implicates speech

but following Cornerstone Bible Church).

Despite some contrary authority, the court is persuaded that

the location of a church, absent other expressive issues, does

not implicate the right to free expression.

3. Right to Association

The First Amendment also protects the right to association.

Baird v. State Bar of Ariz.,

(1971). "The Court

has identified two types of 'freedom of association' that merit

constitutional protection: (I) 'choices to enter into and

maintain certain intimate human relationships' and (ii)

association 'for the purpose of engaging in those activities

protected by the First Amendment.'" URI Student Senate v.

Narraqansett,

(1st Cir. 2011) (quoting Roberts

v. U.S. Javcees,

(1984)).

Stated only as part of a heading in its objection, the

Congregation faults the magistrate judge for failing to consider

its right to association. In the report and recommendation, the

magistrate noted that the Congregation raised the rights to free

10 speech, assembly, and religious exercise in a heading of its

memorandum in support of its motion for a preliminary injunction.

The magistrate rejected the hybrid combination of rights theory

based on the Congregation's reliance on Hollywood Cmtv.

Synagogue, Inc. v. Citv of Hollywood,

(S.D.

Fla. 2006), which dealt with only the right to religious

exercise. Therefore, it does not appear that the Congregation

raised a separate associational right in support of its

likelihood of success in its motion for a preliminary injunction.

Further, the Congregation does not develop its associational

rights theory in its objection to the report and recommendation.

Instead, in that section of its memorandum, the Congregation

argues that it has rights to both free speech and free exercise

of religion and cites congressional intent in passing the

Religious Land Use and Institutionalized Persons Act. The court

cannot consider an undeveloped associational rights claim that

was not properly raised in the first instance.

4. Free Exercise of Religion

In the report and recommendation, the magistrate judge

addressed the Congregation's claim that Section 2.20.1

constitutes a facially unconstitutional prior restraint on the

right to free exercise of religion. The report and

11 recommendation rejected the reasoning in Hollywood Cmtv.

Synagogue,

, and concluded, based on

Wirzburger v. Galvin,

(1st Cir. 2005), along with

Lighthouse Inst, for Evangelism, Inc. v. Citv of Long Branch,

(3d Cir. 2007), and Lakewood, Ohio, Congregation of

Jehovah's Witnesses, Inc. v. Citv of Lakewood,

(6th

Cir. 1983), that construction of a church building in a

residential district, standing alone, has no religious

significance and does not affect a group's ability to practice

its religion. As a result, the magistrate concluded that the

restriction imposed by Section 2.20.1 did not burden the free

exercise of religion.

In its objection, the Congregation again relies on Hollywood

Cmtv. Synagogue. For the reasons stated in the report and

recommendation, the court is not persuaded that Hollywood

provides a legally correct analysis of the right to free exercise

of religion. Most importantly, in the context of a facial

challenge, the restriction imposed by Section 2.20.1 on the

construction of a church building in a Residential District does

not burden the free exercise of religion. See Lighthouse,

; Lakewood Congregation,

.

Because the Congregation has failed to show that the zoning

restriction burdens the free exercise of religion, there is no

need to consider the Congregation's prior restraint argument.

12 The Congregation has not shown a likelihood of success on Count

I, which was the basis for its motion for a preliminary

injunction. Therefore, it has not satisfied the first

requirement for a preliminary injunction.

Conclusion

For the foregoing reasons, the plaintiff's motion for a

preliminary injunction (document no. 5) is denied. The report

and recommendation (document no. 12) is approved and adopted as

discussed and supplemented by this decision.

SO ORDERED

Cl 3)tClt^LQ,jh \ Jjos'eph A. DiClerico, Ji*. United States District Judge

March 31, 2011

cc: Elizabeth R. Jones, Esquire T. David Plourde, Esquire

13