FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EPONA, LLC, a California limited 

liability company; MICHAEL 

FOWLER, an individual,

Plaintiffs-Appellants,

v.

COUNTY OF VENTURA, a political 

subdivision of the State of 

California; DOES, 1–25,

Defendants-Appellees.

No. 17-55472

D.C. No.

2:16-cv-06372-

DMG-PLA

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted October 3, 2017

Pasadena, California

Filed December 7, 2017

Before: DIANA GRIBBON MOTZ,* MILAN D. SMITH, 

JR., and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 EPONA V. COUNTY OF VENTURA

SUMMARY*

Civil Rights

The panel reversed the district court’s dismissal of 

appellants’ First Amendment claim, affirmed the dismissal 

of appellants’ Religious Land Use and Institutionalized 

Persons Act claim, vacated the denial of a preliminary 

injunction and remanded in an action challenging the County 

of Ventura’s permitting scheme, which requires individuals 

to obtain a Conditional Use Permit to host weddings on their 

properties.

Applying Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 

2012), the panel first held that appellants functioned as 

wedding “vendors” because they sought to profit from 

facilitating and providing a commercial space for weddings. 

The panel held that because they were wedding vendors, 

they may suffer economic injury as a result of the permitting 

scheme, and an injunction may redress this harm. Thus, the 

panel held that appellants had Article III standing to bring 

their First Amendment challenge. 

The panel reversed the dismissal of appellants’ First 

Amendment claim, holding that the permitting scheme 

lacked definite and objective standards and also failed to 

provide any limitation on the time period within which a 

permit must be approved. Together, these defects conferred 

unbridled discretion on permitting officials. The panel 

affirmed the dismissal of appellants’ equal treatment claim 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
EPONA V. COUNTY OF VENTURA 3

under the Religious Land Use and Institutionalized Persons 

Act because appellants did not assert that they were a 

religious institution or assembly. The panel vacated the 

district court’s denial of appellants’ motion for a preliminary 

injunction as to the First Amendment claim because the 

motion was no longer moot, and remanded to the district 

court for its consideration in the first instance.

COUNSEL

Matthew D. Hinks (argued) and Benjamin M. Reznik, Jeffer 

Mangels Butler & Mitchell LLP, Los Angeles, California, 

for Plaintiffs-Appellants.

Ronda J. McKaig (argued), Assistant County Counsel; 

Leroy Smith, County Counsel; County of Ventura County 

Counsel, Ventura, California; for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

Epona, LLC and Michael Fowler (collectively, 

Appellants) appeal the district court’s order dismissing 

Appellants’ First Amendment and Religious Land Use and 

Institutionalized Persons (RLUIPA), 42 U.S.C. § 2000cc et 

seq., claims, and denying as moot Appellants’ motion for a 

preliminary injunction. Appellants challenge the County of 

Ventura’s (the County) permitting scheme, which requires 

individuals to obtain a Conditional Use Permit (CUP) to host 

weddings on their properties.
4 EPONA V. COUNTY OF VENTURA

We reverse the dismissal of Appellants’ First 

Amendment claim because the permitting scheme vests 

permitting officials with unbridled discretion. We affirm the 

dismissal of Appellants’ equal treatment claim under 

RLUIPA because neither Appellant is a religious institution 

or assembly. We vacate the district court’s denial of 

Appellants’ motion for a preliminary injunction, and remand 

to the district court for its consideration in the first instance 

because the motion is no longer moot.

FACTUAL AND PROCEDURAL BACKGROUND

Michael Fowler is Epona, LLC’s sole member, and owns 

a 40-acre parcel of land (the property) in Ventura County. 

The property is zoned for agricultural use, and neighboring 

properties either are agricultural, or are designated as open 

spaces. Fowler created a garden area on the property, which 

he hoped to rent out for use in wedding ceremonies and 

related events.

The County’s Non-Coastal Zoning Ordinance (NCZO) 

describes permissible land uses in specific zones. NCZO 

§ 8105-4. Outdoor weddings are classified as “temporary 

outdoor” events under NCZO § 8102-0, which encompasses 

“[o]utdoor recreational events such as harvest festivals, 

amusement rides, historic re-enactments, animal events, art 

shows, concerts, craft fairs, weddings, and religious revival 

meetings.” In order to hold a temporary outdoor event on an 

agriculturally zoned property, the landowner must apply for 

and receive a CUP.

The NCZO provides for issuance of a CUP when certain 

standards are satisfied, or where “such conditions and 

limitations, including time limits, as the decision-making 

authority deems necessary, are imposed to allow the 

standards to be met.” Id. § 8111-1.2.1.1. At the time 
EPONA V. COUNTY OF VENTURA 5

Appellants applied for a CUP, the NCZO stated that a permit 

“may” issue if the applicant meets these standards, and 

required the permitting official to make “[s]pecific factual 

findings” that each standard “can be satisfied.” After the 

initiation of this litigation, the County amended the CUP 

scheme to provide that a permit “shall” issue if the relevant 

standards have been satisfied, and to require specific factual 

findings in support of an application denial.1 Id. Under both 

schemes, the applicant bears the burden of proving that all 

of the relevant standards can be met.

Appellants’ CUP application sought permission to use 

the property for up to 60 temporary outdoor events per year, 

including weddings. County agencies reviewed the 

application, and found there were no grounds for denying the 

permit.

The County’s Planning Commission held a public 

hearing on Appellants’ application, at which County staff 

presented its no-impact findings. After receiving objections 

from neighboring land owners, the Commission denied the 

application. In a subsequently issued resolution, the 

Commission based its denial on the following findings:

(1) The venue is not compatible with the 

rural community . . . ;

(2) The venue has the potential to impair the 

utility of neighboring property or uses 

and is inconsistent with the finding set 

forth in the NCZO § 8111-1.2.1.1.c; and

 1 The amended CUP scheme is the subject of appeal in this case.
6 EPONA V. COUNTY OF VENTURA

(3) The venue has the potential to be 

detrimental to the public interest, health, 

safety, convenience, or welfare and is 

inconsistent with the finding set forth in 

the NCZO § 8111-1.2.1.1.d[.]

Appellants appealed the denial of their CUP application 

to the Board of Supervisors. Contrary to its recommendation 

in the previous report, this time the Commission staff 

prepared a report that recommended denial of the CUP 

application. The Board split its vote evenly on the 

application, which had the effect of affirming the 

Commission’s denial.

Appellants filed a complaint in federal district court on 

August 24, 2016, followed by an amended complaint on 

October 7, 2016, both of which alleged (1) abridgment of 

free speech in violation of the First Amendment and 

California Constitution Article 1, § 2; (2) violation of 

RLUIPA; (3) denial of equal protection under the United 

States and California Constitutions; (4) civil rights 

violations pursuant to 42 U.S.C. § 1983; (5) entitlement to a 

writ of mandate pursuant to California Code of Civil 

Procedure § 1094.5; and (6) a request for declaratory relief. 

Appellants also filed a motion for preliminary injunctive 

relief on November 4, 2016, seeking to enjoin enforcement 

of the amended CUP scheme. The County filed a motion to 

dismiss for failure to state a claim the same day.

The district court granted the County’s motion to dismiss 

and denied Appellants’ motion for a preliminary injunction. 

The district court held that Appellants could only challenge 

the CUP scheme as applied, and thus dismissed their facial 

challenge to the amended CUP scheme without leave to 

amend. The court then dismissed, with leave to amend, 
EPONA V. COUNTY OF VENTURA 7

Appellants’ as-applied challenge for failing to plausibly 

allege that the CUP was improperly denied based on content. 

It further held that the CUP scheme did not grant unbridled 

discretion to permitting officials, and did not require time 

limits within which the County must act on a permit 

application because the scheme is content neutral. The court 

similarly dismissed Appellants’ equal protection claims. 

The district court also found that Appellants had not shown 

either a substantial burden on religious exercise or unequal 

treatment as a religious assembly or institution under 

RLUIPA. Finally, the district court denied Appellants’ 

motion for a preliminary injunction as moot because it had 

dismissed the entire amended complaint. Appellants timely 

appealed.2

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 

28 U.S.C. § 1291. We review the district court’s dismissal 

of Appellants’ claims de novo. Fayer v. Vaughn, 649 F.3d 

1061, 1063–64 (9th Cir. 2011) (per curiam). We review the 

district court’s denial of a preliminary injunction for abuse 

of discretion. Brookfield Commc’ns, Inc. v. W. Coast Entm’t 

Corp., 174 F.3d 1036, 1045 (9th Cir. 1999).

ANALYSIS

I. Standing

The County argues that Appellants lack standing because 

(1) they failed to allege a sufficient nexus to the third parties 

whose rights they are asserting, (2) the affected third parties 

 2 Appellants appeal the dismissal of their First Amendment claim, 

the dismissal of their RLUIPA equal terms claim, and the denial of their 

motion for preliminary injunctive relief.
8 EPONA V. COUNTY OF VENTURA

are fully capable of asserting their own rights, and 

(3) Appellants’ purported injuries are not redressable. These 

arguments fail.

In order to have Article III standing, a plaintiff must 

establish (1) that it has suffered an injury in fact that is both 

concrete and particularized, and actual or imminent; 

(2) causation, meaning that the injury is fairly traceable to 

the complained-of action; and (3) redressability, which 

requires a likelihood that the injury will be remedied by a 

decision in the plaintiff’s favor. See Friends of the Earth, 

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–

81 (2000). “Generally, a plaintiff may only bring a claim on 

his own behalf, and may not raise claims based on the rights 

of another party.” Pony v. County of Los Angeles, 433 F.3d 

1138, 1146 (9th Cir. 2006). However, “vendors and those in 

like positions have been uniformly permitted to resist efforts 

at restricting their operations by acting as advocates of the 

rights of third parties who seek access to their market or 

function.” Craig v. Boren, 429 U.S. 190, 195 (1976).

We addressed challenges similar to the County’s first 

two arguments regarding third-party standing in Kaahumanu 

v. Hawaii, 682 F.3d 789 (9th Cir. 2012). There, a pastor who 

performed wedding ceremonies, and a non-profit association 

of wedding planners, challenged Hawaii’s permitting 

scheme for commercial weddings on public beaches. See id.

at 793, 795–96. We held that the association members, each 

of whom we characterized as a wedding “vendor,” had 

standing to assert a First Amendment challenge to the 

permitting scheme.3 Id. at 797–98. Application of the 

 3 While the association was the plaintiff in Kaahumanu, it had 

standing only because its individual members had standing. See 

Kaahumanu, 682 F.3d at 797–98.
EPONA V. COUNTY OF VENTURA 9

permitting scheme to commercial weddings caused an 

economic injury to wedding vendors who made a business 

out of organizing weddings. Id. at 797. Furthermore, the 

plaintiffs would have been subject to sanction if they had 

violated the permitting scheme and organized a wedding 

without authorization, which made them “a proper party in 

interest to object to [the scheme’s] enforcement.” Id.

(quoting Craig, 429 U.S. at 193). The plaintiffs also had 

standing to assert the First Amendment rights of their 

potential clients because “‘[t]he legal duties created by [the 

challenged regulations] are addressed directly to vendors 

such as [the plaintiffs]. [The plaintiffs are] obliged either to 

heed the regulatory prohibition, thereby incurring a direct 

economic injury through the constriction of [their] market, 

or to disobey the regulatory command and suffer’ legal 

sanction.” Id. at 798 (alterations omitted) (quoting Craig,

429 U.S. at 194).

The County’s redressability argument fares no better. 

The County argues that Appellants’ requested remedy—an 

injunction against the challenged provisions of the County’s 

permitting scheme—would fail to redress Appellants’ 

injury. The County reasons that (1) per County regulation, 

land use is prohibited unless specifically allowed, and 

(2) outdoor weddings are allowed only if an individual has a 

CUP under the NCZO; therefore, (3) if the CUP scheme is 

invalidated, there will be no means of acquiring a permit for 

outdoor weddings, and such weddings will be entirely 

disallowed. But application of the County’s logic would 

effectively insulate every county permitting scheme from 

constitutional review. Rather than precluding outdoor 

weddings altogether, elimination of the CUP scheme as it 

applies to weddings would yield the result that “expressive 

activities protected by the First Amendment that previously 

were only conditionally permitted are now unconditionally
10 EPONA V. COUNTY OF VENTURA

permitted.” See 3570 E. Foothill Blvd., Inc. v. City of 

Pasadena, 912 F. Supp. 1268, 1281 (C.D. Cal. 1996) 

(emphasis in original). Therefore, an injunction could 

redress Appellants’ injury.

As in Kaahumanu, Appellants function as wedding 

“vendors” because they seek to profit from facilitating and 

providing a commercial space for weddings. Because they 

are wedding vendors, they may suffer economic injury as a 

result of the CUP scheme, and an injunction may redress this 

harm.4 Thus, pursuant to our holding in Kaahumanu, 

Appellants have Article III standing to bring their First 

Amendment challenge.

II. First Amendment Claim

A. Appellants can bring a facial challenge to the 

County’s permitting scheme

In general, courts disfavor facial challenges to 

legislation. S. Or. Barter Fair v. Jackson County, 372 F.3d 

1128, 1134 (9th Cir. 2004). However, the Supreme Court 

permits facial challenges to prior restraints of protected 

expression for two reasons: (1) such restraints may have a 

chilling effect on protected speech because potential 

speakers may choose to self-censor rather than either acquire 

a license or risk sanction for speaking without one; and 

(2) where a regulation lacks clear standards for the issuance 

of a permit, an as-applied challenge may fail to provide 

 4 To the extent the injunctive relief sought by Appellants is 

overbroad, the district court could and should narrow it. See Stormans, 

Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (discussing the 

district court’s obligation to narrow injunctive relief to proscribe only 

unconstitutional conduct). But, the need to tailor any injunctive relief to 

Appellants’ alleged harm does not impact Appellants’ standing.
EPONA V. COUNTY OF VENTURA 11

sufficient protection against content-based censorship. See 

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 

757–59 (1988); see also Barter Fair, 372 F.3d at 1134–35. 

In accordance with these justifying principles, permitting 

schemes are subject to facial challenge if they “have a close 

enough nexus to expression, or to conduct commonly 

associated with expression, to pose a real and substantial 

threat” that protected speech or conduct will be suppressed. 

City of Lakewood, 486 U.S. at 759; see Real v. City of Long 

Beach, 852 F.3d 929, 933 (9th Cir. 2017) (concluding a 

plaintiff can bring a facial First Amendment challenge to a 

CUP scheme “when he ‘argue[s] that an ordinance . . . 

impermissibly restricts a protected activity’” (alterations in 

original) (quoting Santa Monica Food Not Bombs v. City of 

Santa Monica, 450 F.3d 1022, 1033–34 (9th Cir. 2006))).

The County argues that Appellants may not bring a facial 

challenge to the CUP scheme because the NCZO does not 

directly regulate marriage ceremonies or their content. The 

County supports its argument by reference to Kaahumanu, 

in which we held that the plaintiffs could only bring an asapplied challenge to a regulation requiring a permit for all 

commercial activity on state beaches, except to the extent 

that that regulation vested broad discretion in permitting 

officials. See Kaahumanu, 682 F.3d at 800–02.

Two points are relevant. First, unlike the regulation at 

issue in Kaahumanu, which applied broadly to every 

commercial activity on state beaches, the regulation at issue 

here expressly includes “weddings” as part of a list of 

regulated activities, and treats other commercial activities 

(most notably commercial filming) differently.5 Second, 

 5 In Kaahumanu, we rested our rejection of the plaintiffs’ facial 

challenge not only on the breadth of the regulation, but also on the 
12 EPONA V. COUNTY OF VENTURA

and more significantly, we did permit a facial challenge to 

the licensing scheme in Kaahumanu to the extent that the 

scheme gave permitting officials unbridled discretion to 

grant or revoke permits. Id. at 802. True, we require that 

the grant of discretion present a sufficient nexus to protected 

expression so as to pose a “real and substantial threat” of 

censorship. Id. (quoting Long Beach Area Peace Network v. 

City of Long Beach, 574 F.3d 1011, 1020 (9th Cir. 2009)); 

see also Barter Fair, 372 F.3d at 1135. But, where the 

activity to be permitted or not per the exercise of official 

discretion is a commercial wedding, this nexus requirement 

is satisfied. See Kaahumanu, 682 F.3d at 802; see also 

Barter Fair, 372 F.3d at 1136 (holding that a regulation 

giving discretion over allowing mass gatherings had “a 

sufficiently close nexus to conduct commonly associated 

with expression” to be subject to facial challenge).

Here, Appellants challenge the NCZO on the basis that 

it confers unbridled discretion on the permitting officials 

reviewing their application to hold commercial weddings. 

Thus, Appellants may bring a facial challenge.

B. The NCZO grants permitting officials unbridled 

discretion

“While ‘prior restraints are not unconstitutional per se[,] 

any system of prior restraint comes to [the court] bearing a 

heavy presumption against its constitutional validity.’” 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) 

(alterations omitted) (quoting Se. Promotions, Ltd. v. 

 

regulation’s “failure to regulate in any manner who may officiate at a 

wedding, who may attend the wedding, what may be worn at a wedding, 

and what words may be spoken at a wedding,” 682 F.3d at 801, which 

the presently challenged regulation also fails to regulate.
EPONA V. COUNTY OF VENTURA 13

Conrad, 420 U.S. 546, 558 (1975)). It is well settled that 

“an ordinance which . . . makes the peaceful enjoyment of 

freedoms which the Constitution guarantees contingent upon 

the uncontrolled will of an official—as by requiring a permit 

or license which may be granted or withheld in the discretion 

of such official—is an unconstitutional censorship or prior 

restraint.” Shuttlesworth v. City of Birmingham, 394 U.S. 

147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S. 

313, 322 (1958)). The heart of Appellants’ argument is that 

the NCZO imposes an unconstitutional prior restraint on 

protected speech by vesting permitting officials with 

unbridled discretion due to the CUP scheme’s (1) lack of 

definite and objective standards for granting a permit, and 

(2) failure to specify a timeframe within which a permit must 

be granted or denied. If the NCZO grants permitting 

officials an impermissible degree of discretion, then the 

regulation fails to qualify as a valid time, place, and manner 

restriction on speech. See Kaahumanu, 682 F.3d at 806–07.

1. The CUP scheme lacks definite and objective

standards

“[A] law subjecting the exercise of First Amendment 

freedoms to the prior restraint of a license, without narrow, 

objective, and definite standards to guide the licensing 

authority, is unconstitutional.” Shuttlesworth, 394 U.S. at 

150–51; see also City of Lakewood, 486 U.S. at 755–56. 

That is, absent definite and objective guiding standards, 

permit requirements present a “threat of content-based, 

discriminatory enforcement.” G.K. Ltd. Travel v. City of 

Lake Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006). While 

permitting guidelines need not eliminate all official 

discretion, see Ward v. Rock Against Racism, 491 U.S. 781, 

793–94 (1989), they must be sufficiently specific and 

objective so as to effectively place some “limits on the 
14 EPONA V. COUNTY OF VENTURA

authority of City officials to deny a permit,” Desert Outdoor 

Advert., Inc. v. City of Moreno Valley, 103 F.3d 814, 819 

(9th Cir. 1996).

Our cases reflect the context-specific nature of this 

unbridled discretion inquiry. In Moreno Valley, we struck 

down an ordinance under which, prior to granting a permit, 

officials were required to find that a structure or sign would 

not “have a harmful effect upon the health or welfare of the 

general public” or be “detrimental to the welfare of the 

general public . . . [or] to the aesthetic quality of the 

community or the surrounding land uses.” Id. at 818–19. 

The abstract language of the ordinance, paired with the lack 

of any requirement that officials provide some “evidence to 

support the conclusion that a particular structure or sign is 

detrimental to the community,” impermissibly granted 

officials “unbridled discretion in determining whether a 

particular structure or sign [would] be harmful to the 

community’s health, welfare, or ‘aesthetic quality.’” Id. at 

819.

We subsequently rejected a First Amendment challenge 

to a permitting scheme in G.K. Ltd. Travel, holding that the 

sign code at issue there contained sufficient guidelines to 

avoid the dangers posed by unbridled official discretion. 

436 F.3d at 1083. The code required that permitting officials 

assess whether a sign was “compatible with the surrounding 

environment.” Id. While this requirement, standing on its 

own, provided little authoritative guidance, the terms 

“surrounding environment” and “compatibility” were 

explicitly defined elsewhere in the code by “a limited and 

objective set of criteria.” Id. The code also provided 

additional safeguards by requiring that officials render 

application decisions within a limited time period and “state 
EPONA V. COUNTY OF VENTURA 15

the reasons for [each] decision to either grant or deny a 

permit so as to facilitate effective review.” Id.

In a third case, Desert Outdoor Advertising, Inc. v. City 

of Oakland, 506 F.3d 798 (9th Cir. 2007), we addressed 

permitting guidelines that “f[ell] somewhere between the 

abstract standards invalidated in Moreno Valley and the 

more explicit criteria and procedural requirements upheld in 

G.K. Limited Travel.” Id. at 807. Officials were required to 

determine whether (1) the denial of a variance from the 

applicable sign restrictions “would deprive the applicant of 

privileges enjoyed by owners of similarly zoned property,” 

(2) a variance would confer a “special privilege” upon the 

applicant, and (3) strict compliance with the code would 

“result in practical difficulty or unnecessary hardship 

inconsistent with the purposes of the zoning restrictions, due 

to unique physical or topographic circumstances or 

conditions of design.”6 Id. at 806. We held that while the 

procedure’s requirements were “somewhat elastic” and 

required “reasonable discretion to be exercised by the 

permitting authority,” they nevertheless contained 

“appropriate standards cabining the [City’s] discretion.” Id. 

at 807 (alteration in original) (quoting Moreno Valley, 

103 F.3d at 818).

As with the scheme in City of Oakland, the scheme here 

falls between Moreno Valley and G.K. Ltd. Travel. To 

obtain permit approval under the amended CUP scheme, an 

 6 A fourth condition, that a variance “not adversely affect the 

character, livability, or appropriate development of abutting properties 

or the surrounding area, and [could] not be detrimental to the public 

welfare,” was removed from the ordinance while the lawsuit was 

pending. City of Oakland, 506 F.3d at 801–02 (alteration in original).
16 EPONA V. COUNTY OF VENTURA

applicant must prove “to the satisfaction of the appropriate 

decision-making authority,” that seven conditions can be 

satisfied. The proposed use must be:

(a) “consistent with the intent and provisions 

of the County’s General Plan and of 

Division 8, Chapters 1 and 2, of the 

Ventura County Ordinance Code;”7

(b) “compatible with the character of 

surrounding, legally established 

development;”

(c) “not [] obnoxious or harmful, [and must 

not] impair the utility of neighboring 

property or uses;”

(d) “not [] detrimental to the public interest, 

health, safety, convenience, or welfare;”

(e) “compatible with existing and potential 

land uses in the general area where the 

development is to be located;”

(f) “on a legal lot; and”

 7 Chapter 1 describes the Code’s purpose as: “to protect and promote 

the public health, safety and general welfare; to provide the 

environmental, economic and social advantages which result from an 

orderly, planned use of resources; to establish the most beneficial and 

convenient relationships among land uses and to implement Ventura 

County’s General Plan.” NCZO § 8101-1.
EPONA V. COUNTY OF VENTURA 17

(g) “approved in accordance with the 

California Environmental Quality Act 

and all other applicable laws.”

NCZO § 8111-1.2.1.1.

The permitting official must be satisfied that every 

condition has been or will be met. See id. Thus, if one 

condition confers an impermissible degree of discretion, the 

specificity of a separate condition will not save the scheme.

Criteria (f) and (g), located “on a legal lot” and 

“approved in accordance with [CEQA],” are objective. 

Conditions (a) through (e), however, echo those that we 

previously have concluded do not provide sufficient 

guidance to permitting officials. Unlike G.K. Ltd. Travel, 

these standards are not defined elsewhere by a limited and 

objective set of criteria. In particular, conditions (c) and (d) 

mirror the requirements we struck down in Moreno Valley

that a proposed use not “have a harmful effect upon the 

health or welfare of the general public” or be “detrimental to 

the welfare of the general public . . . [or] to the aesthetic 

quality of the community or the surrounding land uses.” 

103 F.3d at 818. In that case, we were particularly 

concerned about the combination of abstract language, and 

the lack of a requirement that permitting officials support 

their decision with objective evidence. Id. at 819.

The County argues that other provisions of the NCZO 

provide additional specific factors for permitting officials to 

consider when applying the CUP requirements, making the 

ordinance more akin to that upheld in G.K. Ltd. Travel. This 

argument is unsuccessful because these additional factors do 

not apply to the issuance of CUPs. Instead, they expressly 

apply “in establishing permit conditions” for development

projects. NCZO § 8109-0.1. While planned developments 
18 EPONA V. COUNTY OF VENTURA

are governed by both section 8111-1.2.1.1 and section 8109-

0.1, there is no indication that CUPs are governed by NCZO 

§ 8109-0.1 and there is no cross reference between sections 

8111-1.2.1.1 and 8109-0.1. Therefore, the additional factors 

do not appear to apply to the issuance of a CUP.

The amended CUP scheme, however, differs from the 

scheme at issue in Moreno Valley in that it requires the 

permitting official to make “specific factual findings” to 

support an adverse decision.

We have explained that “requiring officials to state the 

reasons for a license denial provides an important check on 

official discretion by ‘facilitat[ing] effective review of the 

official’s determination’ and ‘ensur[ing] that the 

determination . . . is properly limited in scope.’” Seattle 

Affiliate of Oct. 22nd Coal. to Stop Police Brutality, 

Repression and Criminalization of a Generation v. City of 

Seattle, 550 F.3d 788, 801 (9th Cir. 2008) (alterations in 

original) (quoting G.K. Ltd. Travel, 436 F.3d at 1083). The 

amended CUP scheme requires specific factual findings in 

support of a permit denial. However, it is unclear whether 

the amendment requires the Commission to provide greater 

specificity than before.

On the one hand, at the public hearing in support of the 

amendment to the CUP scheme, the County stated that the 

amendments “do not make any substantive changes to the 

findings of approval for these permits,” and specifically in 

regard to the newly explicit need for findings in support of a 

denial, it noted that the “board is already doing this.” This 

suggests that the amendment might not require any greater 
EPONA V. COUNTY OF VENTURA 19

specificity than before.8 On the other hand, the County also 

explained a new procedural requirement according to which 

the Commission would issue a factual report setting forth its 

recommendation on a permit application, which the Board 

would either adopt or, if it disagreed with the 

recommendation, respond with a resolution “formaliz[ing] 

and very clearly articulat[ing] the facts which preclude [it] 

from making the findings of approval.” This procedural 

change suggests a greater degree of specific fact finding is 

required under the amended regulation.

Neither the provision of specific guidelines nor a 

requirement of specific factual findings is “necessarily 

determinative of whether a statute confers excess 

discretion.” Id. at 798–99. Rather, we look to the totality of 

the factors to assess whether an ordinance “contains 

adequate safeguards to protect against official abuse.” Id. at 

799. In light of the specific nature of this case and the 

 8 Indeed, the facts of this case demonstrate that little specificity was 

required under the original scheme. Here, the Commission supported its 

denial of Appellants’ CUP application under the original scheme with 

findings that the proposed use (1) “is not compatible with the rural 

community,” (2) “has the potential to impair the utility of neighboring 

property or uses and is inconsistent with finding [sic] set forth in the 

NCZO § 8111-1.2.1.1.c,” and (3) “has the potential to be detrimental to 

the public interest, health, safety, convenience, or welfare and is 

inconsistent with the finding set forth in the NCZO § 8111-1.2.1.1.d.” 

None of these findings is specific. The first specifies that the proposed 

use is “not compatible” with the community, but provides no explanation 

as to why, and thus says no more than that the proposed use fails to meet 

condition (b). Similarly, findings two and three each note the use’s 

“potential” to violate one of multiple disjunctive conditions, then state 

only that the proposed use violates conditions (c) and (d), respectively. 

Neither explains why the use would be in violation nor what specific 

aspect of the given conditions would be violated. The Commission’s 

findings here provided little, if any, check on official discretion.
20 EPONA V. COUNTY OF VENTURA

existence of multiple conditions that we previously have 

concluded are not definite and specific, the CUP scheme 

fails to provide definite and specific guidelines for 

permitting officials. Cf. id. (“Because Seattle has neither a 

binding interpretation of the Parade Ordinance nor any wellestablished practices governing the exercise of official 

discretion, the only question before us is whether the 

Ordinance, on its face, provides sufficient guidance to these 

officials.”).

2. The CUP scheme lacks a time limit

In Freedman v. Maryland, 380 U.S. 51 (1965), the 

Supreme Court set forth procedural safeguards required to 

render a prior restraint on speech constitutional. Id. at 58–

59. Among these procedural requirements is a guarantee that 

the licensor “will, within a specified brief period, either issue 

a license or go to court,” id. at 59, because “[w]here the 

licensor has unlimited time within which to issue a license, 

the risk of arbitrary suppression is as great as the provision 

of unbridled discretion,” FW/PBS, 493 U.S. at 227; see Real, 

852 F.3d at 935.

While the Freedman safeguards are not required for 

content-neutral time, place, and manner permit schemes, see 

Thomas v. Chi. Park Dist., 534 U.S. 316, 322–23 (2002), a 

permitting scheme is not “content neutral” if it vests 

unbridled discretion in a permitting official, see 

Kaahumanu, 682 F.3d at 806 (adopting the view that “the 

viewpoint neutrality requirement includes the prohibition on 

a licensing authority’s unbridled discretion”); see also 

Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 

(1992) (noting that unbridled discretion raises specter of 

viewpoint discrimination); City of Lakewood, 486 U.S. at 

763–64 (same). Because the CUP scheme lacks adequate 

standards for official decision making and specifically 
EPONA V. COUNTY OF VENTURA 21

targets weddings, it necessarily also requires the time 

limitation contemplated by Freedman. Cf. Real, 852 F.3d at 

935 (concluding a tattoo artist raised a cognizable priorrestraint claim where the ordinance vested excessive 

discretion with the permitting city and lacked time limits to 

grant or deny a CUP); Seattle Affiliate, 550 F.3d at 798 

(noting the Supreme Court’s concern about statutes that do 

not contain mechanisms for review of decisions).

The NCZO does not itself identify any specified time 

period within which a permitting decision must be made. 

Citing Citizens for Free Speech, LLC v. County of Alameda, 

114 F. Supp. 3d 952, 965–66 (N.D. Cal. 2015), the County 

argues that the California Permit Streamlining Act (CPSA) 

provides a time limit that cabins official discretion. We 

disagree. The CPSA only applies to “development projects” 

as defined in California Government Code § 65928, which 

“includes a project involving the issuance of a permit for 

construction or reconstruction but not a permit to operate.” 

Id. (emphasis added). Because a permit to host weddings 

will not necessarily require construction or reconstruction, 

the CPSA time limits do not apply. See 3560 E. Foothill 

Blvd., 912 F. Supp. at 1276 (finding that the time limits 

provided by the CPSA do not limit the timeframe for issuing 

a permit on a specific use of property where neither 

construction nor reconstruction would necessarily be 

required).

The NCZO’s failure to provide any limitation on the time 

period within which a permit must be approved further 

compounds the problem created by the lack of definite 

standards for permitting officials. See, e.g., FW/PBS, 

493 U.S. at 226–27. Together, these defects confer 

unbridled discretion on permitting officials in violation of 

the First Amendment. See Real, 852 F.3d at 935. We 
22 EPONA V. COUNTY OF VENTURA

therefore reverse the district court’s dismissal of Appellants’ 

First Amendment claim.

III. RLUIPA Equal Treatment Claim

To bring an equal treatment claim under RLUIPA, 

“(1) there must be an imposition or implementation of a 

land-use regulation, (2) by a government, (3) on a religious 

assembly or institution,” and (4) the regulation must treat the 

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); see 42 U.S.C. 

§ 2000cc(b)(1). Appellants do not argue that they are a 

religious assembly or institution. Instead, they contend that 

a plaintiff need not be a religious assembly or institution in 

order to bring an equal treatment claim.

In Centro Familiar, when discussing the plaintiff’s equal 

terms claim, we held that “the government, not the religious 

institution,” bears the burden of persuasion “once the 

religious institution establishes a prima facie case.” Centro 

Familiar, 651 F.3d at 1171. This repeated reference to 

“religious institution” indicates that a plaintiff must be a 

religious assembly or institution to bring an equal terms 

claim, and we so hold. Consistent with this holding, the 

Third, Fifth, and Eleventh Circuits also require that a 

RLUIPA plaintiff be a religious assembly or institution in 

order to bring an unequal treatment claim. See Opulent Life 

Church v. City of Holly Springs, 697 F.3d 279, 290 (5th Cir. 

2012) (finding appellant was a religious assembly or 

institution); Lighthouse Inst. for Evangelism, Inc. v. City of 

Long Branch, 510 F.3d 253, 270 (3d Cir. 2007); Primera 

Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward 

County, 450 F.3d 1295, 1307–08 (11th Cir. 2006); see also

Tree of Life Christian Schs. v. City of Upper Arlington, 
EPONA V. COUNTY OF VENTURA 23

823 F.3d 365, 377–78 (6th Cir. 2016) (White, J., concurring 

in part and dissenting in part) (citing Primera Iglesia, 

450 F.3d at 1307).

Appellants advance two more arguments regarding their 

equal terms claim. First, they contend that they may bring 

an equal terms claim because the use of their property for 

weddings falls within RLUIPA’s definition of religious 

exercise. However, the cases cited by Appellants all involve 

a substantial burden claim, of which religious exercise is an 

element. See, e.g., Westchester Day Sch. v. Village of 

Mamaroneck, 504 F.3d 338, 347–48 (2d Cir. 2007); see also 

42 U.S.C. § 2000cc(a)(1). Because religious exercise is not 

an element in the equal treatment analysis, this argument is 

unavailing. See 42 U.S.C. § 2000cc(b)(1). Second, 

Appellants argue that Article III standing is enough to bring 

any RLUIPA claim. While Appellants are correct that 

standing under RLUIPA “shall be governed by the general 

rules of standing under Article III,” 42 U.S.C. § 2000cc-2(a), 

Appellants must still satisfy the elements for an equal terms 

claim to prevail thereon. Because Appellants are not a 

religious assembly or institution, the district court’s 

dismissal of Appellants’ equal treatment claim was proper.

IV. Preliminary Injunction

After the district court dismissed all of Appellants’ 

claims, it denied Appellants’ motion for a preliminary 

injunction as moot. The district court never considered 

whether Appellants had demonstrated a likelihood of 

success or irreparable harm, nor whether the balance of 

equities and public interest favor injunctive relief. See All. 

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th 

Cir. 2011) (citing Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7, 20 (2008)).
24 EPONA V. COUNTY OF VENTURA

Because we reverse the district court’s dismissal of 

Appellants’ First Amendment claim, Appellants’ motion for 

a preliminary injunction is no longer moot. Therefore, we 

vacate the district court’s denial of the motion on that 

ground. But, because “[a] preliminary injunction is an 

extraordinary remedy never awarded as of right,” Winter, 

555 U.S. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–

90 (2008)), and “[t]he grant of a preliminary injunction is a 

matter committed to the discretion of the trial judge,” Sierra 

On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 

(9th Cir. 1984), we remand this case to the district court for 

consideration of all the Winter factors in the first instance. 

See Evans v. Shoshone-Bannock Land Use Policy Comm’n, 

736 F.3d 1298, 1307 (9th Cir. 2013).

CONCLUSION

For the foregoing reasons, we reverse the district court’s 

dismissal of Appellants’ First Amendment claim, affirm the 

district court’s dismissal of Appellants’ RLUIPA equal 

treatment claim, vacate the denial of Appellants’ motion for 

a preliminary injunction, and remand to the district court for 

consideration of the motion for a preliminary injunction.

Each party shall bear its own costs on appeal. See Fed. 

R. App. P. 39(a)(4).

REVERSED IN PART, AFFIRMED IN PART, 

VACATED IN PART, REMANDED.