FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALVARY CHAPEL BIBLE 

FELLOWSHIP, a California non-profit 

religious corporation,

Plaintiff-Appellant,

v.

COUNTY 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 judgement 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 antichurch 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 nondiscrimination 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.