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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 1 of 17
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`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`
`
`Plaintiffs/Petitioners,
`
` v.
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`VLADAN MILOSAVLEJEVIC and
`ANGEL MICHAIL AND GABRIIEL, LLC,
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`
`
`
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`CITY OF BRIER,
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`
`
`
`
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`Defendant/Respondent.
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`
`
`Case No. C16-1414RSM
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`ORDER GRANTING RESPONDENT’S
`MOTION FOR SUMMARY JUDGMENT
`AND DENYING PETITIONER’S
`MOTIONS FOR LEAVE TO FILE
`SURREPLY AND TO CONTINUE
`TRIAL AND AMEND CASE SCHEDULE
`
`I.
`
`INTRODUCTION
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`This matter comes before the Court on Respondent’s Motion for Summary Judgment.
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`Dkt. #32. Petitioner’s claims arise from Respondent’s denial of his request for a height variance
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`necessary to build a personal chapel. Petitioner’s proposed personal chapel would exceed
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`Respondent’s 30-foot residential land-use zone’s height-cap.1 Dkt. #20 at 2. Respondent asks
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`the Court to dismiss Petitioner’s claims on the basis that (1) Petitioner does not meet the elements
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`necessary to establish a violation of the Religious Land Use and Institutionalized Persons Act’s
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`(“RLUIPA”), 42 U.S.C. § 2000ee, substantial burden provision; (2) Petitioner does not meet the
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`elements necessary to establish a violation of RLUIPA’s equal terms provision; (3) Petitioner’s
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`Civil Rights Act, 42 U.S.C. § 1983 (“Section 1983”), claims are without legal or factual basis;
`
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`1 The Court notes that Petitioner previously applied for a building permit, but later abandoned
`the application. AR 5 and Dkt. #32-1 at 2. Therefore, even if the Court were to find in
`Petitioner’s favor, Petitioner could not yet build his chapel.
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`ORDER - 1
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`

`

`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 2 of 17
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`
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`and (4) delay damages are not available in any event. Dkt. #32. Petitioner opposes the Motion,
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`arguing that genuine disputes exist as to material facts, and therefore respondent is not entitled
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`to summary judgment. Dkt. #33. Additionally, Petitioner has filed a Motion for Leave to File a
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`Surreply and a Motion to Continue Trial Date and Amend Case Schedule. Dkts. #37 and #38.
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`For the reasons discussed below, the Court now GRANTS Respondent’s Motion for Summary
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`Judgment and DENIES Petitioner’s Motions For Leave To File Surreply and To Continue Trial
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`and Amend Case Schedule.
`
`II.
`
`BACKGROUND
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`Petitioner Vladan Milosavlejevic seeks to build a personal Serbian Orthodox chapel on
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`property owned by his company, Angel Michail and Gabriiel, LLC., in the City of Brier,
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`Washington (“City”).2 Dkts. #1-1 at ¶ 2 and #33-1 at ¶ ¶ 22-22. To comply with religious
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`standards, Petitioner asserts that his chapel must meet specific architectural dimensions,
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`including two domes, each spanning 40-feet five and one-half inches from the interior floor to
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`the exterior height. Dkt. #17 at 6. Petitioner’s property is located in a residential land-use zone.
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`Id. Prior to seeking to build a chapel, Petitioner worshipped in his home, and attended Serbian
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`Orthodox church services in King and Snohomish Counties. Dkts. #32 at 7 and #34 at 3.
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`Under Brier Municipal Code (“BMC”) 17.28.010(E), buildings in single-family
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`residential zones may not exceed a maximum height of 30 feet. Individuals planning to erect
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`structures exceeding 30 feet must apply and be approved for height variances in addition to
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`building permits. Dkt. #34 at 12. To obtain a variance, applicants must meet eight criteria.
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`Administrative Record (“AR”) at 72. The procedure for processing variance applications is set
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`forth in BMC 17.36.050(E).
`
`
`2 For ease of reference, Mr. Milosavlejevic and Angel Michail and Gabriiel LLC will be referred
`to as a singular Petitioner.
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`ORDER - 2
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`

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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 3 of 17
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`
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`On May 19, 2015, Petitioner applied for a height variance to construct his chapel. AR 2-
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`3. As proposed, Petitioner’s chapel would exceed the City’s single-family residential height limit
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`by ten feet, five and one-half inches. Petitioner asserts that his proposed chapel domes are
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`“vehicle[s] for . . . prayers to be sent to the heavens.” Id. at 25. Petitioner states that while his
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`chapel height specifications originate from his grandfather’s wishes, the 40-foot dome
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`measurement originates from the Serbian Orthodox belief that 40 is a holy number. Id. at 56;
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`Dkt. #32-1 at 7. According to an architectural report obtained by City Planner Lauren Balisky,
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`under communism, Serbians were prohibited from developing traditional Serbian Orthodox
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`churches in the Byzantine style of architecture. AR 120 (Ex. K). Since then, “Serbs in exile,
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`especially in the United States, [are] in a better position to develop previously built church
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`building traditions than indigenous communities.” Id. The architectural report notes that Serbian
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`Orthodox churches are “not supposed to look like a house, as their functions are completely and
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`fundamentally different. Thus, heights should not be constrained to residential heights.” Id. at
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`120-22. The Serbian Orthodox U.S. and Canada’s Western American Diocese note that a
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`church’s height must be proportional to its footprint in length and width. Id. at 123 (Ex. A).
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`On March 30th, the Commission voted unanimously to recommend denying Petitioner’s
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`variance application, and directed staff to prepare a report and recommendation to the City
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`Council for consideration at its April 20, 2016 meeting. Id. at 344. On April 20th, the
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`Commission reviewed the proposed Report and Recommendation, and voted to postpone action
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`until May 18, 2016, due to Petitioner’s allegations that denying his application would constitute
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`a religious rights violation. Id. The Commission also authorized its Chair to re-open the hearing
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`on the application if recommended by the City Attorney, which he did on May 2, 2016. Id. On
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`May 18th, the Commission held the hearing, received a Final Revised Staff Report with
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`ORDER - 3
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`

`

`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 4 of 17
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`
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`attachments, and again heard from Petitioner, three members of the public, and City staff. AR
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`346-468. The Commission then passed a motion to approve a report to the City Council,
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`recommending Petitioner’s variance be denied. Id. at 343-45. The Commission’s report noted
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`that Petitioner met only two of eight mandatory criteria for granting variances. Id. at 344 and
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`349-57. On July 19, 2016, the City Council denied Petitioner’s application. Dkt. #17 at 21.
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`Petitioner then filed a Complaint in Snohomish County Superior Court, alleging that the
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`variance procedure violated Washington’s Land Use Petition Act (“LUPA”), RCW 36.70C, et
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`seq., and that the denial of the variance burdens his right to due process, free exercise of religion,
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`and equal protection of the law. Id. at ¶ 31. Additionally, Petitioner alleged he suffered
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`discrimination by the City because staff had personal vendettas against him. Id. at ¶ ¶ 29-30.
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`Petitioner believes the City’s Mayor, Bob Colinas, is of Croatian heritage and acted vengefully
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`against Petitioner who identifies as Serbian. Dkt. # 35-1 at 35-36.
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`On September 9, 2016, the case was removed to this Court. Dkt. #1 at 1. On March 10,
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`2017, the Court denied Petitioner’s LUPA claim. Dkt. #24. The Court now addresses
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`Petitioner’s remaining RLUIPA and Section 1983 claims.
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`A. Standard of Review for Motions of Summary Judgment
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`III. DISCUSSION
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`Summary judgment is appropriate where “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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`R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In ruling on summary
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`judgment, courts do not weigh evidence to determine the truth of the matter, but “only
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`determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549
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`(9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747
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`ORDER - 4
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`

`

`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 5 of 17
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`
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`(9th Cir. 1992)). Material facts are those which might affect the outcome of the suit under
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`governing law. Anderson, 477 U.S. at 248.
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`Courts must draw all reasonable inferences in favor of the non-moving party. See
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`O’Melveny & Meyers, 969 F.2d at 747 (rev’d on other grounds). However, to survive summary
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`judgment, the nonmoving party must make a “sufficient showing on an essential element of her
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`case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
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`323 (1986). Further, “[t]he mere existence of a scintilla of evidence in support of the petitioner’s
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`position will be insufficient; there must be evidence on which the jury could reasonably find for
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`the petitioners.” Anderson, 477 U.S. at 251.
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`B. RLUIPA Claim
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`RLUIPA was established to protect the “free exercise of religion from government
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`regulations.” Anselmo v. County of Shasta, Cal., 878 F. Supp. 2d 1247, 1254 (E.D. Cal. 2012)
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`(citing Guru Nanak Sikh Soc. Of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir.
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`2006)). RLUIPA contains several provisions limiting government regulation of land use,
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`referred to as: (1) the substantial burden provision, (2) the equal terms provision, (3) the
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`nondiscrimination provision, and (4) the exclusions and limits provision. See 42 U.S.C. § 2000cc;
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`Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1169 & n.24 (9th Cir.
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`2011); see also Holy Ghost Revival Ministries v. City of Marysville, 98 F. Supp. 3d 1153, 1170-
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`71 (W.D. Wash. 2015). Petitioner asserts claims under RLUIPIA’s first and second provisions.
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`Dkt. # 1-1 at ¶ ¶ 22 and 24.
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`Under RLUIPA’s substantial burden provision, a “government land-use regulation ‘that
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`imposes a substantial burden on the religious exercise of a [person, including a] religious
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`assembly or institution’ is unlawful ‘unless the government demonstrates that imposition of the
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`ORDER - 5
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`

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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 6 of 17
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`burden . . . is in furtherance of a compelling government interest; and is the least restrictive means
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`of furthering that compelling governmental interest.’” Int’l Church of the Foursquare Gospel v.
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`City of San Leandro, 673 F.3d 1059, 1066 (9th Cir. 2011) (quoting 42 U.S.C. § 2000cc(a)(1)).
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`Free religious exercise includes “any exercise of religion, whether or not compelled by, or central
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`to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). RLUIPA provides that “[t]he use,
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`building, or conversion of real property for the purpose of religious exercise shall be considered
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`to be religious exercise of the person or entity that uses or intends to use the property for that
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`purpose.” 42 U.S.C. § 2000cc-5(7)(B). Respondent argues that Petitioner fails to demonstrate
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`that his exercise of religion was substantially burdened by the City’s denial of his variance
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`request. Dkt. #33 at 7.
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`Under RLUIPA’s equal terms provision, governments are prohibited from imposing land-
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`use “restriction[s] on a religious assembly ‘on less than equal terms’ with a nonreligious
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`assembly.” Centro Familiar, 651 F.3d at 1169 (citing 42 U.S.C. § 2000cc(b)). Respondent
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`alleges that Petitioner does not qualify as a religious assembly or institution under RLUIPA. Dkt.
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`#32-1 at 15. Respondent further argues that, even if Petitioner is a religious assembly, the City
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`did not treat Petitioner on less than equal terms to comparable nonreligious or secular assemblies
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`or institutions. Dkts. #32-1 at 16 and #33 at 7. For the reasons discussed below, the Court finds
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`that Petitioner’s RLUIPA claims fail under both provisions.
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`1. Substantial Burden Provision
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`The Court’s analysis under the “substantial burden” provision “proceeds in two sequential
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`steps.” Int’l Church, 673 F.3d at 1066. “First, the plaintiff must demonstrate that a government
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`action has imposed a substantial burden on the plaintiff’s religious exercise.” Id. “Second, once
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`ORDER - 6
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`

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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 7 of 17
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`a plaintiff has shown a substantial burden, the government must show that its action was ‘the
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`least restrictive means’ of ‘further[ing] a compelling government interest.’” Id. (citation omitted).
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`Respondent argues that Petitioner fails to demonstrate a substantial burden on his free
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`exercise of religion because alternative locations exist in which Petitioner may practice his
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`religion. Dkt. #32-1 at 15. Petitioner responds that existing alternative places of worship do not
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`alleviate his burden or diminish his interest in building a personal chapel. Dkt. #33 at 8-12. Also,
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`Petitioner asserts that the City made its decision without providing a compelling government
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`interest in the least restrictive means, thus, Petitioner’s religious burden is unjustified. Id.
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`As noted above, RUILPA provides that “[t]he use, building, or conversion of real
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`property for the purpose of religious exercise shall be considered to be religious exercise of the
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`person or entity that uses or intends to use the property for that purpose.” 42 U.S.C. § 2000cc-
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`5(7)(B). The Ninth Circuit has stated that, “[f]or a land use regulation to impose a substantial
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`burden, it must be oppressive to a significantly great extent.” Int’l Church, 673 F.3d at 1066.
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`(citation and internal quotation marks omitted). “A substantial burden exists where the
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`governmental authority puts ‘substantial pressure on an adherent to modify his behavior and to
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`violate his beliefs.’” Id. (citation omitted). “When the religious institution ‘has no ready
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`alternatives, or where the alternatives require substantial ‘delay, uncertainty, and expense,’ a
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`complete denial of the application might be indicative of a substantial burden.’” Int’l Church,
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`673 F.3d at 1068 (citing Westchester Day Sch. V. Vill. Of Mamaroneck, 504 F.3d 338 (2nd Cir.
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`2007)).
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`Petitioner asserts that existing places of worship do not alleviate the burden on his free
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`exercise of religion nor minimize his desire to build a personal chapel. Dkt. #33 at 9. Petitioner
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`claims that traveling to existing Serbian Orthodox churches would be substantially burdensome
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`ORDER - 7
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`

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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 8 of 17
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`and pressure him to “modify his behavior and his beliefs.” Dkt. #33 at 10 (quoting Guru Nanak
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`Sikh Soc., 456 F.3d at 988). However, Petitioner does not provide any evidence to demonstrate
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`this substantial burden. For example, Petitioner has not provided data regarding the distance
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`between his residence and alternative places of worship, or the cost of travel, nor has he
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`differentiated the type of worship services between churches.
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`Respondent argues that because Petitioner may still practice his religion in his home or
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`at local Serbian churches, the inconvenience of traveling to existing churches does not constitute
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`a “substantial burden on the free exercise of religion.” Dkt. #32-1 at 12 and 22 (citing Korean
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`Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 953 P.2d 1315, 1320 (Haw. 1998); Guru
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`Nanak Sikh Soc., 56 F.3d at 988). Respondent points to Petitioner’s own witness, Orthodox Priest
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`Lavrentije Janjic, who states that Petitioner’s prayer can take place anywhere, including within
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`other churches and homes. Dkt. #32-1 at 14. Accordingly, Respondent has not prevented the
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`Petitioner from continuing to worship anywhere by declining to grant a variance.
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`In Int’l Church of the Foursquare Gospel v. City of San Leandro, the court found that a
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`substantial burden could exist where there were “no other suitable sites . . . in the City to house
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`the Church’s expanded operations.” 673 F.3d at 1067. Petitioner’s situation is distinguishable
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`from that in Int’l Church because Petitioner fails to demonstrate that there are no other suitable
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`sites for him to worship. Specifically, Petitioner has failed to show that he cannot attend services
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`at a different church, or that he cannot continue to worship within his own home. Nor has
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`Petitioner demonstrated that he could not procure another location within a different City zone
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`to build a chapel.3
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`3 Petitioner owns additional properties in the area. Dkt. #34 at 4, fn. 5.
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`ORDER - 8
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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 9 of 17
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`The Court finds that Petitioner fails to demonstrate that his free exercise of religion is
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`substantially burdened by the City’s failure to grant a height variance. Petitioner has ready
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`alternative places of worship at his disposal. Likewise, the City has not precluded the Petitioner
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`from practicing his faith at home or other faith centers. See San Jose Christian Coll. v. City of
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`Morgan Hill, 360 F.3d 1024, 1035 (9th Cir. 2004) (“[W]hile the PUD ordinance may have
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`rendered College unable to provide education and/or worship at the Property, there is no evidence
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`in the record demonstrating that college was precluding from using other sites within the city.”).
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`The Court also finds that the City’s zoning procedures “do not impose a substantial
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`burden simply because they prevent a religious institution or person from constructing an ideal
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`place of worship.” Dkt. #33-1 at 12. In fact, Petitioner is in the same position as he was before
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`submitting the variance request; he and his family may continue to worship within their home,
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`where they have worshipped for nearly 20 years. Dkts. #32-1 at 22 and #34 at 3. While
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`worshipping within a home or church in Snohomish and King Counties is unsatisfactory to
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`Petitioner, this inconvenience does not rise to the level of a substantial burden. Dkt. #32-1 at 7.
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`Additionally, nothing precludes Petitioner from submitting a building permit application for land
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`located within a different zone. Dkt. #34 at 4. These options may be inconvenient, but are not
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`substantially burdensome, particularly given that petitioner has experience in the construction
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`business and owns additional properties.
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`Since Petitioner fails to demonstrate that the City imposed a substantial burden on his
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`religious exercise, the Court need not consider whether the City’s action furthers a compelling
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`governmental interest in the least restrictive manner possible.
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`///
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`///
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`ORDER - 9
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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 10 of 17
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`2. Equal Terms Provision
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`The Court next turns to Respondent’s argument that Petitioner’s equal terms claim fails
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`as a matter of law. The “equal terms” provision provides: “No government shall impose or
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`implement a land use regulation in a manner that treats a religious assembly or institution on less
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`than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). To
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`succeed on such a claim, the claimant must demonstrate four elements: “(1) an imposition or
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`implementation of a land-use regulation, (2) by a government, (3) on a religious assembly or
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`institution, (4) on less than equal terms with a nonreligious assembly or institution.” Corp. of
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`the Catholic Archbishop of Seattle v. City of Seattle, 28 F. Supp. 3d 1163, 1166 (W.D. Wash.
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`2014). Courts analyze the equal terms provision by examining whether a government regulation
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`subjects similarly situated religious and secular assemblies or institutions to different land-use
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`treatment. Id. Courts also ask whether a government has a legitimate justification for denying
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`land-use permits. Id. at 1167. Respondent argues that (1) Petitioner does not qualify as a
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`religious assembly or institution under RLUIPA; and (2) even if Petitioner is a religious
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`assembly, the City did not treat Petitioner on less than equal terms to comparable nonreligious or
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`secular assemblies or institutions. Dkt. #32-1 at 16.
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`To support its first argument, Respondent asserts that Petitioner is neither a religious
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`assembly nor institution because he is seeking to build a chapel for personal worship only.
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`However, Petitioner argues that by including his extended family in his faith-group, he classifies
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`as an assembly. Dkt. #33-1 at 12. Petitioner argues that his family counts as an assembly because
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`his family gathers for the common interest of prayer. Id. at 13. RLUIPA does not define the
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`term “religious assembly.” Thus, courts have used dictionary definitions to discern the term’s
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`plain and ordinary meaning. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230
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`ORDER - 10
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`

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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 11 of 17
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`(11th Cir. 2004). Black’s Law Dictionary defines assembly as “a group of persons who are united
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`and who meet for some common purpose.” (10th ed. 2014). RLUIPA and case law use
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`“assembly” and “institution” interchangeably. One definition of an “institution” includes “[t]he
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`investiture of a cleric with a benefice, by which the cleric becomes responsible for the spiritual
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`needs of the members of a parish.” BLACK’S LAW DICTIONARY (10th ed. 2014). Unfortunately,
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`neither definition addresses whether Petitioner’s extended family may be included in a group-
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`classification as an assembly or institution.
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`However, even if the Court accepts that Petitioner classifies as a religious assembly or
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`intuition, the Court finds that Petitioner fails to demonstrate unequal treatment. Respondent
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`argues that since “there are no buildings with[in] the City of Brier that exceed 30 feet in height
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`as determined per the [City] Code,” there are no secular or non-secular organizations to which
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`the Petitioner can be compared. Dkts. #32-1 at 17 and #34 at 7. That being said, neither Petitioner
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`nor Respondent provide this Court with evidence of whether or not the City denied all variances
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`to proposed buildings above 30 feet. It is possible that a variance may have been approved, but
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`the resulting building was not constructed.
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`In Corp. of the Catholic Archbishop of Seattle, petitioner Bishop Blanchet High School
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`applied for a variance to construct 70-foot tall light poles for lighting athletic fields. 28 F.
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`Supp.3d 1163, 1165 (W.D. Wash. 2014). These light poles would have exceeded Seattle’s 30-
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`foot residential height limit, so the City denied the variance. Corp. of the Catholic Archbishop
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`of Seattle, 28 F. Supp. 3d at 1165. In the subsequent litigation, the Court denied Seattle’s Motion
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`for Summary Judgement, finding that Seattle violated RLUIPA because petitioner was similarly
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`situated to comparable public schools that lit their athletic fields in residential neighborhoods,
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`and had been allowed to construct light poles exceeding the City’s height limit. Id. at 1169. In
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`ORDER - 11
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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 12 of 17
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`that case, petitioners provided a comparison to a similarly situated school with similar light poles
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`on similar athletic fields. Id. Here, Petitioner provides no such comparison. Dkt. #34 at 8.
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`Instead, Petitioner compares his proposed chapel to City Light and AT&T electricity and cell
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`phone towers that stand taller than 30 feet. Dkt. #34 at 7. Respondent responds that the proposed
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`chapel and the utility towers differ in two ways: (1) utility towers and chapels serve different
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`purposes and are not comparable; and (2) each tower is located within a utility corridor zone,
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`rather than a residential zone where Petitioner’s property is located. Id.
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`The Court agrees with Respondent. First, as other courts have noted, “[i]f a plaintiff does
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`not offer a suitable comparator . . . there can be no cognizable evidence of less than equal
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`treatment, and the plaintiff cannot meet its initial burden of proof.” Irshad Learning Center v.
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`County of Dupage, 937 F. Supp.2d 910, 932 (N.D. Ill. 2013). Utility towers are not suitable
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`comparators to chapels. They serve completely different purposes, and they are located within
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`different City zones with different zoning criteria. Thus, the Court finds that regardless of
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`whether or not Petitioner is a religious assembly or institution, Petitioner does not demonstrate
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`that he was treated less than equal to similarly situated applicants.
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`C. Section 1983
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`Next, the Court considers Petitioner’s Section 1983 claims. Dkt. #1-1 at 5-7. Petitioner’s
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`claims are based on the belief that City Council members hold personal vendettas against him,
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`resulting in the decision to deny his variance. Dkt. #1-1 at ¶ ¶ 29-31. Petitioner alleges that
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`Respondent’s variance denial violates his right to free exercise of religion and equal protection.4
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`Id. Respondent argues that Petitioner’s Section 1983 claims are foreclosed by the Court’s prior
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`LUPA decision. Dkt. #32 at 18. In the alternative, Respondent argues that Petitioner’s Section
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`4 Petitioner initially alleged a “due process” claim in his Complaint; however, he has since
`clarified that he is not asserting an independent due process claim. Dkt. #33 at 17.
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`ORDER - 12
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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 13 of 17
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`1983 claims fail because the City’s variance decision was made without bias or discrimination.
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`Id. at 20. Respondent also contends that even if the Court’s LUPA decision does not foreclose
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`Petitioner’s Section 1983 claims, Petitioner is not entitled to a variance because his application
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`did not meet all eight of the City’s criteria. Id. at 20. In response, Petitioner argues that state
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`remedies do not foreclose federal remedies, and Section 1983 is an independent remedy to state
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`law. Dkt. #33 at 16 (citing Holy Ghost Revival Ministries, 98 F. Supp. 3d at 1165; Monroe v.
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`Pape, 365 U.S. 167, 183 (1961)). Petitioner also argues that questions of material fact preclude
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`summary judgment. As discussed below, the Court finds that Petitioner’s Section 1983 claims
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`fail as a matter of law because: (1) Petitioner’s 1983 claims rely on the same facts and theories
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`as his RLUIPA equal terms claims; (2) Petitioner’s discrimination claims are weakened by the
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`fact that his variance application only met two of eight mandatory criteria for granting variances
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`(Dkt. #32-1 at 17-18); and (3) even if the Petitioner was granted a variance, he did not have a
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`building permit to begin construction. Therefore, the Court need not address whether its prior
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`LUPA decision forecloses Petitioner’s claims.
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`Petitioner’s Section 1983 claims rely on the same facts and theories as his RLUIPA equal
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`terms claims. As previously discussed, Petitioner has not provided enough evidence for a jury
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`to find that the City treated him on less than equal terms to comparable nonreligious or secular
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`assemblies or institutions. Petitioner’s comparison of chapels to utility towers is unpersuasive.
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`Dkt. #32-1 at 17. Thus, the Court finds that Petitioner’s Equal Protection claim fails on the basis
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`that Petitioner cannot demonstrate an appropriate comparator.
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`The Court also agrees with Respondent that Petitioner’s discrimination claims are
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`undermined by the fact that his variance application met only two of eight mandatory criteria for
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`granting variances. Dkt. #32-1 at 17-18. Petitioner has not demonstrated that any of the eight
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`ORDER - 13
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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 14 of 17
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`variance criteria are invalid, nor that the City’s alleged discriminatory acts prevented him from
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`meeting the eight criteria. See Bulchis v. City of Edmonds, 671 F. Supp. 1270, 1271 (W.D. Wash.
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`1987) (finding the City’s process for denying a conditional use permit invalid). Further,
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`Petitioner has not submitted evidence that other organizations, similarly situated or not, have
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`obtained variances while only meeting two of the City’s eight mandatory criteria. Since there is
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`no material issue with the City’s criteria for evaluating a variance, Petitioner fails to demonstrate
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`either unequal treatment or any racial animus.
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`In addition, the Court notes that regardless of whether or not the City granted Petitioner’s
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`variance request, Petitioner could not construct his chapel. The City does not allow construction
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`without a building permit (and variance when necessary). Dkt. #34 at 12 and 24. Petitioner has
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`not demonstrated that anyone within the City has been allowed to begin construction without a
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`building permit, nor has be demonstrated that he would have received a building permit if he had
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`first received the variance. Since Petitioner did not submit a complete building permit
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`application, he could not begin construction. Id.
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`Likewise, Petitioner has not produced sufficient evidence that the City’s decision was
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`bias-motivated. Dkt. #33 at 21. Petitioner asserts “proof [of intentional unequal treatment] is
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`not essential to” denying Respondent’s Motion for summary judgment because the exercise of
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`religion is an issue of fundamental rights. Dkt. #33 at 17-18. However, generally to defeat a
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`motion for summary judgment petitioners must provide evidence that respondent acted with
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`discriminatory intent. See Thorton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005).
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`Valid evidence of discriminatory intent must be more than a mere a conclusory statement of bias.
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`Id. Additionally, being a member of a specific classification, by itself, does not mean that a
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`petitioner has suffered discrimination. Id.
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`ORDER - 14
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`Case 2:16-cv-01414-RSM Document 45 Filed 09/07/17 Page 15 of 17
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`Petitioner claims in conclusory manner that City officials acted discriminatorily toward
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`him. Dkt. #1-1 at ¶ ¶ 29-30. Specifically, Petitioner believes that Mayor Colinas is of Croatian
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`heritage. Dkt. # 35-1 at 35-36. Petitioner asserts that a “longstanding ethnic strife” caused
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`Croatians to dislike Serbians. Dkt. #33 at 17. As a result of ethnic tension, Petitioner believes
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`Mayor Colinas acted negatively toward him. Dkt. # 35-1 at 35-36. Respondent asserts its
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`decision to deny Petitioner’s variance had nothing to do with Mayor Colinas’ or the City
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`Councilmembers’ alleged personal vendettas or prejudice, nor Petitioner’s Serbian heritage. Id.
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`at 22. Instead, as demonstrated through email exchanges between City Planners and Petitioner,
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`City Planners provided him feedback and opportunities to amend or complete his variance
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`request and invited Petitioner to discuss the variance at open City Council hearings. AR 4 and
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`70. Ultimately he failed to meet six of the eight mandatory variance criteria. Petitioner simply
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`has not provided evidence that City officials acted discriminatorily in the variance process. For
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`all of these reasons, Petitioner’s Section 1983 claims must fail as a matter of law.
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`D. Delay Damages
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`Finally, Respondent seeks summary judgment