Bryan v. City of Bryan
United States Court of Appeals for the Sixth Circuit
September 5, 2024, Filed
No. 24-3625
Reporter
2024 U.S. App. LEXIS 22738 *DAD'S PLACE OF BRYAN, OH, Plaintiff-Appellant, v.
CITY OF BRYAN, OH, et al., Defendants-Appellees.
Counsel: [*1] For DAD'S PLACE OF BRYAN, OH,
Plaintiff - Appellant: Philip D. Williamson, Taft, Stettinius &Hollister, Cincinnati, OH; Jeremy Dys, Ryan Nathan Gardner,
David J. Hacker, First Liberty Institute, Plano, TX.
For CITY OF BRYAN, OH, Defendant - Appellee: Zachary
W. Anderson, John T. McLandrich, Frank H. Scialdone,
Mazanec, Raskin & Ryder, Cleveland, OH; Marc A. Fishel,Fishel, Downey, Albrecht & Riepenhoff, New Albany, OH.
For MAYOR CARRIE SCHLADE, in her official andpersonal capacities, JAMIE MENDEZ, in his official andpersonal capacities, ANDREW J. WATERSON, in his officialand personal capacities, DOUG POOL, in his official andpersonal capacities, Defendants - Appellees: John T.
McLandrich, Zachary W. Anderson, Frank H. Scialdone,Mazanec, Raskin & Ryder, Cleveland, OH; Marc A. Fishel,Fishel, Downey, Albrecht & Riepenhoff, New Albany, OH.
Judges: Before: COLE, READLER, and BLOOMEKATZ,Circuit Judges.

Opinion

ORDER
Plaintiff Dad's Place, a church in Bryan, Ohio, appeals adistrict court's order denying its motion for a preliminary
injunction preventing Defendants—the City of Bryan, Mayor
Carrie Schlade, Police Captain Jamie Mendez, Planning andZoning Administrator Andrew J. Waterston, and Fire
Chief [*2] Doug Pool (collectively, "the City")—fromenforcing city ordinances and fire codes that prohibit Dad'sPlace from allowing its congregants to sleep in the church
without first obtaining a permit or variance. Dad's Placemoves for an injunction pending appeal and seeks an
expedited decision on the motion. It also moves to supplement
the record with filings from a state court action brought
against it by the City.

One procedural point deserves mention at the outset. Dad's
Place has moved for an administrative stay and a preliminary
injunction pending its appeal of the district court's orderdenying injunctive relief. But because the district court denied
the church a preliminary injunction, we understand the church
to be, in essence, seeking only a preliminary injunction
pending appeal. As a result, we need not resolve whether thechurch has failed to comply with Federal Rule of Appellate
Procedure 8 because it is unlikely to succeed on the merits of
its appeal.
With respect to Dad's Place's request for a preliminary
injunction pending appeal, we balance four factors indetermining whether to grant an injunction pending appeal:"(1) whether the movant has shown a strong likelihood ofsuccess on the merits; (2) whether the [*3] movant will suffer
irreparable harm if the injunction is not issued; (3) whether
the issuance of the injunction would cause substantial harm toothers; and (4) whether the public interest would be served byissuing the injunction." Overstreet v. Lexington-Fayette Urb.
Cnty. Gov't, 305 F.3d 566, 572-73 (6th Cir. 2002). "When aparty seeks a preliminary injunction on the basis of a potential
constitutional violation," however, "the likelihood of successon the merits often will be the determinative factor." City ofPontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430(6th Cir. 2014) (en banc) (per curiam) (order) (internalquotation marks and citation omitted). We review the district
court's legal conclusions de novo and its findings of fact forclear error, but "the district court's ultimate determination as
to whether the four preliminary injunction factors weigh infavor of granting or denying preliminary injunctive relief' for
an abuse of discretion. Id. (citation omitted).

Likelihood of Success on the Merits
Dad's Place argues that it is likely to succeed on the merits ofits substantial burden claim under the Religious Land Use andInstitutionalized Persons Act ("RLUIPA") and its free
exercise claims under the federal and Ohio constitutions. Wedisagree.
a. RLUIPA Claim

2024 U.S. App. LEXIS 22738, *3
RLUIPA provides that "[n]o government shall impose orimplement a land [*4] use regulation in a manner that
imposes a substantial burden on the religious exercise of a . . .
religious assembly or institution" unless it can show that theburden furthers "a compelling government interest" and "isthe least restrictive means of furthering that . . . interest." 42U.S.C. § 2000cc(a)(1). The parties do not dispute on appeal
that RLUIPA applies only to the City's zoning ordinances, notthe fire code. Thus, the question is whether the zoning laws atissue—here, the requirement that Dad's Place be properly
zoned so that people may lawfully sleep at the church—
substantially burden its religious exercise.
In the context of RLUIPA, a burden is "substantial," if it has"some degree of severity" and is "more than aninconvenience." Livingston Christian Schs. v. Genoa CharterTwp., 858 F.3d 996, 1003 (6th Cir. 2017). We have declined
to adopt "a bright line test" for determining whether a zoning
law's burdens on a religious institution are substantial. Id. at1002. In an analogous context, we considered factors such aswhether the burden is self-imposed, whether the religious
institution can feasibly operate out of an alternate location,
and whether the imposition of the ordinance will cause thereligious institution to suffer substantial delay, uncertainty, orexpense. Id. at 1004. These factors, [*5] while "helpful," arenot exhaustive. Id. Our ultimate inquiry is "functional andfactually driven." Id. at 1011.
Dad's Place fails to show that it will likely succeed on
establishing that the City's zoning laws substantially burden
its religious exercise. It argues that it faces a substantial
burden in the form of criminal prosecution and fines. But thecriminal charges were filed against Chris Avell—the pastor at
Dad's Place—who is not a party to this case. In any event, theburdens alleged by Dad's Place are self-imposed. Dad's Place
is located in Bryan's commercial district, and its building is
now zoned for mercantile use (front half of the building) andassembly use (back half of the building). The City provides aprocess by which entities in the commercial district can seek avariance or conditional use permit ("CUP") allowing them tooperate as residential facilities. Indeed, a Christianorganization next door to Dad's Place has obtained permission
from the City to operate as a homeless shelter. Yet, despite
being opened in 2018, Dad's Place has never applied to theCity for a CUP or variance allowing it to operate as aresidence, and it began operating as such while being zoned
for mercantile [*6] and assembly use. RLUIPA does notentitle Dad's Place to engage in unauthorized uses without
ever seeking a permit or variance to do so. See Living Water
Church of God v. Charter Twp. of Meridian, 258 F. App'x729, 737 (6th Cir. 2007) ("[RLUIPA] is not intended tooperate as 'an outright exemption from land-use regulations.'(quoting C.L. for Urb. Believers v. City of Chicago, 342 F.3d752, 762 (7th Cir. 2003))); Livingston Christian Schs., 858
F.3d at 1003 (similar); Midrash Sephardi, Inc. v. Town ofSurfside, 366 F.3d 1214, 1227 n.11 (11th Cir. 2004) (rejecting
plaintiffs' contention "that the burden of requiring them toapply for a CUP constitutes a substantial burden on religiousexercise").
Additionally, Dad's Place has not shown that it lacks adequate
alternatives. For example, it can use a second floor as aresidential facility or open a second facility. It asserts thatsuch alternatives "transform the nature of the Church's
ministry," but it gives no explanation as to why its ministry
requires people to sleep on the ground floor of the building as
opposed to the second floor, or why its ministry would be lesseffective if people slept in a different building that wasproperly zoned for residential use. See Livingston ChristianSchs., 858 F.3d at 1011 ("Allowing a plaintiff to make out asubstantial-burden claim where the plaintiff . . . in fact haseasy access to suitable property in a neighboring jurisdiction
is beyond the protection of RLUIPA.").
In short, because Dad's Place has not shown a likelihood ofsuccess [*7] in demonstrating that the zoning ordinances
substantially burden its religious exercise, we need not assess
whether the ordinances survive strict scrutiny under RLUIPA.
Livingston Christian Schs., 858 F.3d at 1005.
b. Free Exercise Claims
As a preliminary matter, Dad's Place argues that the district
court's failure to address its claim under the Ohio
constitution's free exercise clause itself merits an injunction.
The City disagrees, arguing that Dad's Place made only
cursory mentions of its Ohio constitution claim in its filings
below. Dad's Place asserts that it referenced the claim in
multiple briefs. A review of the filings demonstrates that thesereferences were merely cursory mentions of the issue, notdeveloped arguments. And although Dad's Place argues thatthe issue was discussed extensively at a preliminary
injunction hearing, it has not provided us with a transcript ofthat hearing. Because it appears from the available record that
Dad's Place is inappropriately using this court as one of firstview, its Ohio constitution claim fails. See Union HomeMortg. Corp. v. Cromer, 31 F.4th 356, 365 (6th Cir. 2022)(quoting McLane Co. v. EEOC, 581 U.S. 72, 85, 137 S. Ct.
1159, 197 L. Ed. 2d 500 (2017)).
Turning to the federal claim, the Free Exercise Clause of theFirst Amendment, applicable to local governments throughthe Fourteenth Amendment, provides that "Congress shallmake no law . . . prohibiting the free exercise" of religion.

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2024 U.S. App. LEXIS 22738, *7
U.S. Const. amend. I. A free exercise [*8] challenge typically
prompts two questions: (1) Has the government burdenedreligious exercise? And if so, (2) is the burden constitutionallypermissible? See, e.g., Fulton v. City of Philadelphia, 593
U.S. 522, 532-33, 141 S. Ct. 1868, 210 L. Ed. 2d 137 (2021);
Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 525, 142 S.
Ct. 2407, 213 L. Ed. 2d 755 (2022). Here, the church's claim
fails at step one because it has not shown that the City hasburdened its religious exercise. As for the zoning ordinances,
Dad's Place has not, for example, demonstrated that it cannot
use a second floor to operate its religious ministry. See Dahl
v. Bd. of Trs. of W. Mich. Univ., 15 F.4th 728, 731-33 (6thCir. 2021) (per curiam). And as for the fire code, Dad's Place
has not explained why installing a sprinkler system would
prevent it from exercising its religion. See id. The district
court ably put it this way: "Dad's Place does not identify theburdens [or costs] . . . of being required to install [a sprinklersystem]." R.47, PagelD 1396. To the extent Dad's Placesuggests the City has targeted it based on religious status byenforcing the fire code in discriminatory ways, Dad's Place
has failed to show "elements of a clear and impermissible
hostility toward the sincere religious beliefs that motivated"
its operation of a homeless shelter. Masterpiece Cakeshop,
Ltd. v. Colorado Civil Rights Comm'n, 584 U.S. 617, 634, 138
S. Ct. 1719, 201 L. Ed. 2d 35 (2018).
Because Dad's Place has not adequately demonstrated that theCity burdened its religious exercise, it has not shown thatit [*9] is likely to succeed on the merits of its free exercise
claim.

Irreparable Harm
The loss of "First Amendment freedoms, for even [a] minimal
period[] of time, unquestionably constitutes irreparable
injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49
L. Ed. 2d 547 (1976). This court has also held that "whenreviewing a motion for a preliminary injunction, if it is foundthat a constitutional right is being threatened or impaired, afinding of irreparable injury is mandated." Bonnell v. Lorenzo,
241 F.3d 800, 809 (6th Cir. 2001). Dad's Place has not showna likelihood of success on its free exercise claim, and so has
not shown that it faces the loss of its First Amendment rights.
In addition, Dad's Place, through Avell, has repeatedly
asserted that it will not force anyone to leave the premises
absent a biblically valid reason. There is no indication that
Dad's Place has softened on that stance since filing its appeal.
If Dad's Place is not actually ceasing its 24/7 ministry, then it
is not experiencing irreparable harm on that basis, and an
injunction is not necessary to preserve the status quo.

Balance of Harms
Because Dad's Place does not prevail on the first two factorsof the injunction inquiry, we need not resolve the others. Cf.
Cath. Healthcare Int'l, Inc. v. Genoa Charter Twp., 82 F.4th442, 447 (6th Cir. 2023) (explaining that, in free exercise
cases, the likelihood of success on the merits is often thedispositive [*10] factor).
Finally, Dad's Place moves to supplement the record or, in thealternative, for us to take judicial notice of state court filingsin the City's civil action against the church showing that theCity continues to treat secular activities—here, operating amotel—more favorably than religious activities. Federal Ruleof Appellate Procedure 10(e)(2) governs corrections andmodifications to the record and provides that "[i]f anythingmaterial to either party is omitted from or misstated in therecord by error or accident, the omission or misstatement may
be corrected . . . by the court of appeals." The rule is meant"to allow the district court to correct omissions from or
misstatements in the record for appeal, not to introduce new
evidence in the court of appeals." S & E Shipping Corp. v.
Chesapeake & Ohio Ry. Co., 678 F.2d 636, 641 (6th Cir.
1982). Because the state court filings are new evidence, they
are not properly included in the record under Rule 10(e).
On the other hand, a court of appeals may take judicial noticeof facts that are not subject to reasonable dispute if they "canbe accurately and readily determined from sources whose
accuracy cannot reasonably be questioned." Fed. R. Evid.
201(b). But judicial records are only "a source of 'reasonably
indisputable accuracy' when they record some judicial action
such as dismissing [*11] an action, granting a motion, orfinding a fact." United States v. Ferguson, 681 F.3d 826, 834(6th Cir. 2012) (quoting 21B Charles Alan Wright et al.,Federal Practice & Procedure § 5106.4 (2d ed. 2005)). Dad's
Place attaches for our consideration the City's supplemental
motion for a temporary restraining order in its lawsuit against
Dad's Place and Dad's Place's response to that motion,including an affidavit by one of its attorneys stating that two
motels in Bryan do not have sprinkler systems installed in therooms. But these are not records of judicial action, and wehave no way of determining whether the attorney's affidavit isaccurate. Therefore, we decline to take judicial notice of thestate court filings.
Accordingly, the motions for an injunction pending appeal
and to supplement the record are DENIED, and the motion toexpedite is DENIED AS MOOT.

End of Document

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