Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 1 of 59 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 1 of 59 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 06-CV REB-BNB ROCKY MOUNTAIN CHRISTIAN CHURCH, a Colorado nonprofit corporation, ALAN AHLGRIM, Lead Pastor, DONALD BONDESON, Discipleship Pastor, BARB EVANS, Director of Women s Ministry, and DAVID PAGE, Elder, v. Plaintiffs, BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, COLORADO, Defendant. AMENDED COMPLAINT AND JURY DEMAND Plaintiffs Rocky Mountain Christian Church, a Colorado nonprofit corporation (the Church ), Alan Ahlgrim, Lead Pastor, Donald Bondeson, Discipleship Pastor, Barb Evans, Director of Women s Ministry, and David Page, Elder, by and through their undersigned counsel, state the following as their Amended Complaint against Defendant, the Board of County Commissioners of Boulder County, Colorado (the Board ) under 42 U.S.C. 1983, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc ( RLUIPA ), Colo. R. Civ. P. 106(a)(4) and the United States and Colorado constitutions JTMACD 05/12/06 4:41 PM

2 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 2 of 59 GENERAL ALLEGATIONS Introduction 1. The Church is a nondenominational Christian church located on a 54.4 acre parcel of property (the Property ) at the northwest corner of Niwot Road and N. 95 th Street in unincorporated Boulder County (the County ). 2. The Church was started in 1984 with Pastor Alan Ahlgrim as its founding pastor to serve the religious needs of residents of the area. Its Sunday worship services are now regularly attended by over 2,100 people, approximately 30 percent of whom are children. At least 75% of the Church members live within five to seven miles of the Church in the County. 3. Pastor Ahlgrim remains the Lead Pastor today. 4. The Church s Articles of Incorporation were filed with the Colorado Secretary of State on February 28, 1984, and describe the Church s purposes as follows: The purpose or purposes for which the corporation is organized: (1.) is to establish a fellowship with the intent of building a body of believers in Jesus Christ to the end that those persons who are Christian may be encouraged in the Christian faith and life. Further, that persons not yet Christian may be led to an obedient belief in Jesus Christ as the only Son of the living God and in the Bible as the Word of God, resulting in a body of believers without denominational name, creed, or other barriers to Christian unity, and consequently uniting all followers of Jesus Christ through the Bible as the only final Authority; and (2.) is exclusively for religious, charitable, educational, and evangelistic purposes, including, for such purposes, the making of distributions to organizations that qualify as exempt organizations under section (501) (c) (3) of the 2

3 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 3 of 59 Internal Revenue Code, or other corresponding provision(s) of any future United States Internal Revenue Law. 5. The Bylaws of the Church state that the primary purpose of the Church is to exalt Jesus Christ, impacting Boulder County and beyond, by bringing people to Christ, building them up in the faith, and sending them out to make a difference in their world. A true and correct copy of the Bylaws is attached hereto as Exhibit A and incorporated herein by reference. 6. Article III of the Bylaws provides that the qualifications for membership in the Church are those set forth in the Holy Scripture, and those meeting the qualifications who wish to unite with the Church shall receive the right hand of Christian fellowship. 7. The Church and its congregation engage in certain religious practices which are central to the Church s religious mission, including, among other things, worship, fellowship, discipleship, ministry and evangelism. 8. As part of the religious practice of discipleship, and in order to provide a Christian education for the young members of the congregation, the Church helped form Rocky Mountain Christian Academy, a Colorado nonprofit corporation (the Christian Academy ), which operates the 380-student school on the Property serving kindergarten through the eighth grade. The Bylaws of the Christian Academy provide that it shall be governed by a governing board, a majority of which must be members of the Church, and one of whom shall be an elder of the Church. The Christian Academy is an instrument of the Church s practice of discipleship, and, therefore, the Church 3

4 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 4 of 59 designed its facilities for dual use and allows the Christian Academy to use the facilities without charge. 9. The Church s current facilities on the Property have become so cramped that the Plaintiffs and members of the Church are prevented or impaired from exercising their religion through the religious practices described above, both with respect to the Church itself, and with respect to the Christian Academy. 10. Plaintiffs and other members of the Church are prevented from engaging in the religious exercise of worship due to lack of space. For example, both the worship center and Christian educational space has reached capacity and the lack of additional space now limits the ministries that can be pursued and developed. 11. Plaintiffs and other members of the Church are prevented from engaging in the religious exercise of discipleship due to lack of space. For example, adult Sunday School classes have been reduced or eliminated to free up space to accommodate growth in the children s Sunday School classes. What was once a primary avenue to integrate new adult members into the Church community no longer exists due to the space constraints of the Church s existing facilities. Adult Sunday School classes have been moved to temporary structures. 12. More than 600 children currently attend the Church s Sunday School program, and the Church has been forced to hold Sunday School classes in the hallway. There is no appropriate space to house the 6 th grade Sunday School classes. For safety reasons, the Church will soon be forced to turn away children from Sunday School classes. 4

5 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 5 of Certain religious programs involving discipleship, such as Mothers of Preschoolers and Women in the Word, have had their attendance capped due to lack of space despite great demand. 14. Plaintiffs and other members of the Church are prevented from engaging in the religious exercise of fellowship due to lack of space. The Church cannot hold many fellowship events or accommodate all of those members who want to attend the fellowship events that are held. Some religious groups have been forced to stop meeting altogether. 15. Fellowship is one of the core reasons that people join a church, and nearly all churches contain fellowship hall space to accommodate the gathering of at least half of their church s congregation. Only one space in the Church s current facilities, the gym, can accommodate fellowship events for groups of between 100 to 300 people, and no space exists for fellowship events of more than 300 people. Therefore, due to the intense competition for the gym s fellowship space, many fellowship events must be cancelled or scheduled at inconvenient times that prevent some members from attending. 16. Plaintiffs and other members of the Church are prevented from engaging in the religious practice of ministry due to lack of space. For example, Church members who desire to get married in their own Church often cannot do so and must find alternative space. 17. Plaintiffs and other members of the Church are prevented from engaging in the religious practice of evangelism due to lack of space. The term 5

6 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 6 of 59 evangelism is derived from the Greek word good news and involves outreach to nonmembers. One of the primary methods of outreach is to allow community groups to use the Church facilities for meetings and banquets. Community groups that the Church was able to accommodate just a few years ago are no longer able to meet at the Church due to lack of space. 18. In order to fully engage in the religious practices described above, the Church requested permission to enlarge the facilities on the Property by filing a Special Use Amendment Application, Docket No. SU (the Application ). 19. Over a two-year period, the Board and other officials of the County engaged in an improper effort to thwart the Church s plans for its religious practices by, among other things, expressing animus toward the Church and toward the idea of religious education, announcing and implementing a policy designed to stop any growth of the Church, requiring the Church to provide voluminous and detailed information over and above the information required by the County s regulations governing special use applications and of a nature that has not been required of other applicants, and finally by suing the Church in the United States District Court for the District of Colorado (the Federal Court ) in an effort to chill the exercise of First Amendment rights by the Church and members of its congregation and by other religious groups. 20. Throughout this lengthy application process, the Church cooperated and accommodated the County s requests at every turn. Although not required under the County regulations, the Church held seven Niwot neighborhood meetings, five additional meetings with representatives of the adjacent Quiet Retreat 6

7 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 7 of 59 subdivision, and three meetings with representatives of the Niwot Community Association, as well as having Church representatives attend monthly meetings of both the Niwot Community Association and Niwot Business Association. 21. Although the Application as originally submitted complied in all respects with the applicable law, in response to community input and input from the County land use staff, the Church modified it in an effort to be a good neighbor. The original Application was modified by eliminating a proposed 12,000 square-foot balcony addition to its sanctuary, thereby reducing additional seating from 1,000 to 150, and by eliminating a proposed 8,000 square-foot basement addition. Additionally, after being told by Graham Billingsley, the Director of the Boulder County Land Use Department (the Director ), that the request to increase student population for the Christian Academy was the primary problem the County land use staff had with the Application, the Church deleted its request to increase the student population from 380 students to 540 students. The Church also agreed to reduce the western parking lot nearest to Quiet Retreat by 360 spaces, and to lower the parking lot by ten feet, while increasing berm heights so that headlights would not affect the Quiet Retreat subdivision. It also agreed to block use of the western parking lots during non-peak hours and to limit lighting of parking lots only to those in use during evening activities. The buffer zone at the western side of the property was increased by 25 feet, and sports fields were relocated away from the Quiet Retreat subdivision. 22. The Church responded in detail to each request for information by the Board and by other officials of the County. The information requested included a 7

8 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 8 of 59 detailed space analysis describing in detail how each square foot of the requested expansion would be used and how such use related to the religious exercise by the Church and the members of its congregation. 23. Despite the Church s efforts to accommodate the County, it has become clear that the County intended all along to make an example of the Church in an effort to deter other religious organizations in the County from seeking to take advantage of the provisions of RLUIPA. 24. The Board denied the Application and directed the County attorney to sue the Church in Federal Court. The Board s denial of the Application, and the County s conduct in processing the Application, violated both RLUIPA and various provisions of the United States Constitution and Colorado Constitution by discriminating both against religion and between religions, by unreasonably limiting religious assemblies and institutions and structures within the County, by imposing a substantial burden on the religious exercises of Plaintiffs and other members of the Church without serving a compelling governmental interest, and finally by abridging the rights of free speech, association and petition. 25. On March 3, 2006, the Church filed this lawsuit in District Court, Boulder County, Colorado (the State Court ), asserting claims under both state and federal law, and the Board removed it to this Court. 8

9 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 9 of 59 Jurisdiction and Venue 26. This Court has jurisdiction over all federal claims in this Amended Complaint under 28 U.S.C and 1343(a), and supplemental jurisdiction over all state law claims under 28 U.S.C. 1367(a). 27. Venue lies in this district pursuant to 28 U.S.C All Plaintiffs and the Defendant are located in this district, and all events giving rise to this action occurred in this district. Parties 28. The Church is a nonprofit corporation organized pursuant to the laws of the State of Colorado. 29. Pastor Ahlgrim is the Lead Pastor of the Church, and holds the title of Senior Minister. His duties as Senior Minister are described in Article VI, Section 8 of the Bylaws and include responsibility for the general supervision of programs and staff of the Church in cooperation and under the guidance of the Board of Elders. In addition to supervising all aspects of the Church, his duties include preparing and delivering sermons and other biblically rooted messages, performing weddings, funerals and counseling to communicate the love of Christ at critical life events and committing at least ten percent of his time to religious outreach to ministries beyond the Church. 30. Pastor Donald Bondeson is the Discipleship Pastor of the Church. A disciple is a person who is devoted to Christ by practice and example, faithfully connected to the body of Christ in worship and a small group, and joyfully serving Christ in the Church and the community. Pastor Bondeson is responsible for developing 9

10 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 10 of 59 means and methods of instruction to lead members of the Church and others to the status of disciples. His duties include, among other things, leading ministries, performing occasional weddings, funerals and pastoral care requests, assisting in worship services, and providing education and assistance to members to facilitate their growth in the Church. 31. Barb Evans is the Director of Women s Ministries. Her duties include leading the Church s Women s Ministry Board, providing guidance and counseling to women seeking religious help and direction, supervising the Church s various women s groups and ministries. 32. David Page is the vice chairman of the Church s Board of Elders, the governing body of the Church. The responsibilities of the members of the Board of Elders are set forth in Article V of the Bylaws and are based upon the biblical passages cited in Article V. The Board and Senior Minister together oversee the total program of the Church. 33. The Board is the governing body of the County. 34. Pursuant to Colorado statutes, the Board has been delegated land use authority with respect to all unincorporated areas within Boulder County. Changing Religious Practices in the United States 35. Since the 1970s, religious practices in the United States and throughout the world have been characterized by the rapid growth of churches with large attendance, most often located in suburban areas of rapidly growing metropolitan 10

11 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 11 of 59 areas. There is a demonstrable nationwide trend of religious believers grouping together in congregations much larger than those that commonly existed prior to Many of these large churches, like the Church, are nondenominational. 37. These large churches tend to grow to their great size within a short period of time and typically host a multitude of social, recreational, sports and aid ministries. 38. These large churches tend to have a conservative theology and promote intense personal commitment in a majority of their followers. 39. There are currently more than 1,200 churches in the United States with weekly attendance in excess of 2,000 members. These large churches serve more than 2,000,000 Americans. 40. These large churches and the members of their congregations have come under sharp criticism from members of more traditional denominations and churches and from non-religious members of society. Growth of the Niwot Area 41. The County has grown from a population of 131,889 in the 1970 census to a population of more than 291,000 today. 42. The two largest cities in the County are the City of Boulder and the City of Longmont, both of which are classified by the United States Census Bureau ( Census Bureau ) as urbanized areas. The distance from downtown Boulder to downtown Longmont is between 12 to 13 miles. The two cities are connected by 11

12 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 12 of 59 Highway 119, commonly known as the Longmont Diagonal. In addition, the Regional Transportation District ( RTD ) is developing plans to provide mass transit commuter rail service along an existing 12.3-mile rail corridor between 30 th and Pearl Streets in Boulder and downtown Longmont. 43. The Town of Niwot is an unincorporated community within the County located along the Longmont Diagonal about nine miles outside of Boulder and about three miles outside of Longmont. The Census Bureau classifies the Town of Niwot as a census-designated place, defined in part as a closely settled, named, unincorporated communit[y] that generally contain[s] a mixture of residential, commercial and retail areas similar to those found in incorporated places of similar sizes. 44. The Census Bureau maps the boundaries of census designated places. The Church and its Property are included within the Census Bureau map of the Town of Niwot. 45. Census Bureau data indicates that zero percent of residents of the Town of Niwot are engaged in farming occupations. Census Bureau data also indicates that the average commute time to work one way for residents of Niwot is 21.7 minutes. 46. Between 1990 and 2000, the City of Boulder s population grew by 13.6% from 83,312 to 94,673, and the City of Longmont s population grew by 37.9% from 51,555 to 71,093. During the same period, Niwot s population grew by 68.7% from 2,466 to 4,

13 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 13 of The Census Bureau classifies the Boulder-Longmont area as a primary metropolitan statistical area ( PMSA ), and includes it within the Denver- Boulder-Greeley consolidated metropolitan statistical area ( CMSA ). 48. The Church and the Town of Niwot are a part of the urban area that constitutes the Boulder-Longmont PMSA. The large majority of the Church s congregation comes from within the Boulder-Longmont PMSA, and the Church s growth reflects the growth within the Boulder-Longmont PMSA. 49. The Church property is located less than 1,500 feet to the East of the Niwot High School property, a school with a student population of approximately 1,200 students serving the area. 50. The Director of the County s Land Use Department has acknowledged Niwot High School is an urban land use. 51. The Church sometimes serves as a meeting place for meetings important to the urban population living in the Boulder-Longmont PMSA. For example, when RTD was conducting public meetings in 2004 on whether to create mass transit commuter rail service between Longmont and Boulder, it held a meeting at the Church. History of Property and Prior Development 52. To live out their religious beliefs, Plaintiffs and the other members of the Church must assemble to engage in each of the five religious practices of worship, fellowship, discipleship, ministry and evangelism or outreach to nonmembers. For this reason, each of the Church s religious practices requires buildings and space of a size sufficient to safely accommodate the Church s present and future congregation. 13

14 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 14 of 59 The five religious practices, in addition to constituting the exercise of religion, also consist of speech and other expressive conduct. 53. In conducting the religious exercise of worship, the Church incorporates multiple and age-appropriate expressions of personal and group worship into its religious programming, which includes activities such as singing, praying, and listening to sermons. Because the Church believes that not all people and age groups express worship in the same way, the Church s facilities are designed in a way that provides separate worship spaces for adults, teens, and children. 54. To facilitate the religious exercise of fellowship, much of the programming at the Church is designed to cultivate relationships, both among Church members and people who are not members, and that is why the Church s facilities include casual connecting spaces, small-group classrooms, and fellowship halls that accommodate children, teens, and adults. Fostering a healthy community of believers is central to the Church s mission. 55. The principle of discipleship requires an emphasis on Christian education, which involves studying and applying the principles of the Bible. This lifelong activity starts when children are very young, and never ends. To promote spiritual growth, the Church maintains several programs such as the Christian Academy, Children s and Adult Sunday School, Women in the Word, Men s Fraternity, and small support groups for children, youth, and adults. A large percentage of the Church facilities are used for these Christian education programs. 14

15 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 15 of Service to others, for the good of others, or ministry, is a central tenet of the Christian faith and of the Church. To that end, the Church provides traditional social services such as counseling, weddings, funerals, and support for the poor. However, it does not end there. Multiple programs exist to provide services to members of all ages within the Church and to nonmembers of all ages outside of the Church, including sports ministries, youth programs, missions projects, and other programs that exist to strengthen families. Additionally, dozens of small groups meet in the Church facilities and in the community, not only to grow in the faith, but also to provide support, encouragement, and service to others. 57. The Church exists to be a blessing not just to its members, but also to nonmembers. This principle of evangelism is why the Church provides meeting facilities free of charge to non-profit groups in the community. In addition, Church members contribute thousands of volunteer hours to other social service agencies such as Habitat for Humanity and the Longmont OUR Center. Special events held in the Church such as the Christmas production are open to nonmembers because the Church believes it is blessed to be a blessing. 58. To enable it to carry out its religious mission, the Church acquired the Property. The Property was acquired by the Church in three separate acquisitions, the first of approximately 15 acres (the First Parcel ) in 1985, a second of approximately 35 acres (the Second Parcel ) in 1994, and a third of approximately five acres (the Third Parcel ) in

16 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 16 of In connection with the Church s acquisition of the First Parcel, the County approved an application to split the First Parcel from a larger parcel of property in a proceeding identified as Docket No. SE Shortly after the lot split, the County issued a building permit to construct the Church Building on the Property. 60. At the time the County approved the splitting of the First Parcel from a larger parcel of property, the First Parcel was designated in the County Comprehensive Plan as Agricultural Lands of National Significance, and still has this designation. 61. Pursuant to the Boulder County Land Use Code (the Code ), the Property is currently, and has been at all times since 1984, in an Agricultural (A) zone district. The principal permitted uses in the Agricultural (A) zone district are currently set forth at Section B of the Boulder County Land Use Code (the Code ) and include, among other things, churches, community meeting facilities, reception halls, day care centers, and educational facilities. 62. The Church s purpose in acquiring a Property located on two arterial streets and containing more than 50 acres was to accommodate the space needs of a rapidly growing congregation. 63. Throughout the United States, large churches are typically located on parcels of 50 to 100 acres near traffic thoroughfares, such as the location of the Church. 64. Prior to 1996, a church building of any size was a use by right in the Agricultural (A) zone district. 16

17 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 17 of By 1996, the Church had constructed a church building (as subsequently expanded, the Church Building ) in excess of 50,000 square feet and was already serving a congregation of more than 1,700 persons. At that time, the Church Building already had a worship center with a seating capacity of 987 that could be expanded by non-structural interior renovation to up to 1,380, and had mechanical systems in place designed to handle the higher number. 66. In addition, the County had authorized operation of a pre-school through special use review in proceeding numbers SU-93-13, which authorized a 20 child pre-school, and SU-94-16, which authorized an expansion for up to 40 children. 67. In or prior to 1996, Boulder Valley Christian Church ( BVCC ) developed the first large new church in Boulder County at 68 th and South Boulder Road, west of Louisville. 68. Members of the Board were unhappy that BVCC was able to develop in their jurisdiction. In response to the BVCC development, the County adopted Section F of the Code which changed the status of any church with an occupancy load of more than 100, or meeting certain other criteria, from a permitted use to a use requiring special review. 69. Since 1996, a church with an occupancy load of more than 100 cannot be developed in any zone district in the County as a use by right, meaning one that can be developed without further zoning review by the County. 70. The effect of the 1996 Code amendments was to require any but the smallest of churches to go through a discretionary review process known as special 17

18 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 18 of 59 use review. Upon information and belief, all churches built in the County since 1996 have required special use review. 71. The procedure for special use review is lengthy and expensive, and involves public hearings before both the County Planning Commission and the Board. 72. The first step in special use review is a preapplication conference with the County Land Use Department. A landowner seeking special use approval is required to prepare and bring a conceptual site plan to the preapplication conference. The County planner may require additional meetings with the Boulder County Transportation Department, the Boulder County Health Department and the Parks and Open Space Department. 73. The next step is for the landowner to submit an application. The application submittal requirements are set forth in Section of the Code and include the application form, building plans, a site plan, a soils report, a geology report, a description of site features, a report on environmental effects of development, an assessment of transportation impacts, an engineering report, landscape plans, a vicinity map, a list of adjacent property owners, a development agreement and referral packets to be sent to other departments and agencies. 74. The application is then sent to various County departments and certain state agencies for comment. Depending upon the responses from the various referral agencies, additional steps may be required of an applicant. 18

19 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 19 of Following the referral process, a public hearing is held before the Planning Commission which makes a recommendation to the Board concerning the application. 76. Finally, a public hearing is held before the Board, following which the Board approves or denies the application. 77. The County s criteria for special use review are set forth at Section of the Code and provide that the Board shall not approve the proposed use unless it meets a number of unquantifiable, subjective standards, including the following: (a) harmony with the character of the neighborhood and compatible with the surrounding area; (b) in accordance with the Comprehensive Plan; (c) not result in an over-intensive use of the land or excessive depletion of natural resources; (d) not have a material adverse effect on community capital improvement programs; (e) not result in undue traffic congestion or traffic hazards; and (f) be adequately landscaped, buffered, and screened. 78. Since the special use criteria were adopted, the Board has adopted formal policies and engaged in informal practices that allow the Board to grant exemptions from the requirements of Section of the Code on an ad hoc basis (the Exemption Policies and Practices ). 79. For example, although the special use criteria require a proposed use to be in accordance with the Boulder County Comprehensive Plan (the Comprehensive Plan ), the Comprehensive Plan states that it is ADVISORY in nature and that it provides guidance in the decision-making process, but not the final word. 19

20 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 20 of In practice, the Board has sometimes relied upon the fact that a proposed non-agricultural use is located on lands designated as Agricultural Lands of National Significance or is in the Niwot Buffer area to deny a special use application and at other times granted special use approval for proposed non-agricultural uses located on similarly designated and similarly located lands. 81. In a study released in March of 2006, Environment Colorado Research and Policy Center reported that the biggest threat to agricultural land is large-lot residential development. The Board has frequently approved large lot residential uses on lands designated as Agricultural Lands of National Significance, demonstrating that the standard in the Comprehensive Plan is simply a sham. 82. As an additional example, with respect to any existing use that has been rendered a nonconforming use by an amendment to the Code, Section E. of the Code authorizes the Board to exempt such existing use from conformance with the Comprehensive Plan and other requirements of special use review, and to grant a special use approval for such use, if the Board determines that the use has significant historic, cultural, economic, social, or environmental value to Boulder County. Section E. does not authorize an exemption for existing uses having significant religious value. The Code does not contain any separate procedure for requesting an exemption under Section E, and the decision as to whether to exempt a proposed special use from conformance with the Comprehensive Plan and other requirements of special use review is made during the special use process. The Code contains no 20

21 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 21 of 59 standards to guide the Board in determining whether a use has significant historic, cultural, economic, social, or environmental value to Boulder County. 83. In making a determination as to whether to approve a use by special review, the Board engages in an individualized assessment of the proposed use and the property involved. 84. The unquantifiable, subjective standards set forth in Section and the Exemption Policies and Practices allow the Board unbridled discretion to approve or deny any application for use by special review. With respect to a proposed religious use, such subjective standards create the danger that members of the Board may impermissibly favor non-religious uses over religious uses, or favor one religion over another. 85. As a result of the 1996 amendments to the Code provision, the Church Building became a non-conforming use. 86. In 1997, the Church filed an application for special use, docketed by the County as Docket No. SU (the 1997 Application ), for the purposes of making the Church Building again an approved use, as opposed to a non-conforming use, as it had become as a result of the 1996 amendments, and to expand the Church Building. 87. The 1997 Application also requested authorization to begin operating a Christian school serving kindergarten through eighth-grade students, with a maximum of 400 students, and to construct a two-story addition of 53,960 square feet to be used for expanded administrative space, to provide classrooms for the proposed 21

22 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 22 of 59 school and to double as religious education classrooms. In addition, the 1997 Application requested authorization to increase the seating capacity of the worship center from 997 to 1,380 through a non-structural, interior renovation. 88. The Board, by Resolution No , approved the 1997 Application, but limited the size of the proposed school to 260 persons serving kindergarten through fifth grade. 89. The report prepared by the County land use staff in connection with the Board hearing on the 1997 Application found that the application did not satisfy a number of the criteria set forth in Section of the Code. For example, the staff report found that the 1997 Application was not compatible with the surrounding area, was inconsistent with the Comprehensive Plan because the subject property was designated within the Comprehensive Plan as Agricultural Lands of National Importance, and as within the Niwot Buffer Zone, and would result in an overintensive use of the land. 90. Resolution No did not specifically address the negative findings set forth in the staff report, but nevertheless approved the 1997 Application. 91. Although the existing Church Building and the expansion approved by Resolution No was entirely contained on the First Parcel, the resolution, as a condition of approval, required the Church to combine as one lot the First Parcel and the Second Parcel, and to enter into a development agreement pursuant to which the Church granted a 14-acre conservation easement on the northern portion of the Church property to the County. 22

23 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 23 of The site plan for the combined lot approved in connection with Resolution No notes that the portion of the Property to the west of the Church Building, as expanded by the addition approved in the resolution, was contemplated for future expansion. 93. Two further special use approvals were granted by the County under Docket No. SU (the 2000 Application ), which authorized increasing the size of the Church storage building by 1,600 square feet and the addition of a sixth grade to the school, and under Docket No. SU (the 2002 Application ), which authorized addition of seventh and eighth grades, with up to a maximum of 120 students, and installation of a temporary middle school building to serve those grades. The County s land use staff again recommended denial of the application to add the seventh and eighth grade for the same subjective reasons as it had opposed the 1997 Application. 94. Resolution No , which initially had been mistakenly numbered as Resolution No , required that the temporary buildings be removed from the Property at the end of the school year, and contemplated that an application for a more permanent facility would be submitted by the Church. 95. In connection with the hearing on Docket No. SU-02-08, members of the Board requested that the Church not submit any more interim or piecemeal applications, but instead submit an application for the complete and final development of the Property. 23

24 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 24 of 59 The Application 96. At the time the Application was filed in April of 2004, and currently, the approved uses of the Property include a church with a 1,400-seat facility, a preschool for 20 children, a Mom s Day Out program for a maximum of 40 children, and the Rocky Mountain Christian Academy for kindergarten through eighth grades with a maximum of 380 students. 97. At the time the Application was filed in April of 2004, and currently, the improvements on the Property consist of the 106,000 square foot Church Building, a 2,600 square foot maintenance building, and 7,200 square feet of temporary modular units for the Christian Academy. 98. In an effort to comply with the Board s request not to submit any more interim or piecemeal applications, the Application states that it represents the maximum build-out as was referred to on the 1998 SU Amendment site plan and noted in the 2003 approval for temporary buildings. 99. Throughout the Application process, the Church made every effort to respond to concerns of the community and the County staff by making the modifications to the Application that have been described above In response to the requests from the Board that the Church submit one final application for complete build-out of the Property, as opposed to piecemeal applications, and prior to submitting the Application, the Church projected its future needs over a twenty-year period, hired a space planner to advise them with respect to the amount of space that would be required for each of its customary religious 24

25 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 25 of 59 exercises, and engaged architects experienced with church buildings to design the proposed addition. In connection with the design of the expansion which is the subject matter of the Application, the Church engaged both a local architectural firm, Lee Architects, and an architectural firm located in Southern California, Visioneering Studios. The Church has paid Visioneering Studios approximately $100, The Church also engaged a Florida firm, Clark Pro-Media to help plan audio-visual system to be used in the expansion. The Church has paid Clark Pro-Media approximately $30, If the Application had been approved, the total cost of the construction project would have been more than $30,000,000. Much of the material used in the project would have come from outside of Colorado. Due to delays caused by the County s violations of RLUIPA and other applicable law, the cost of construction will be greatly increased Based on historical growth rates, the Church projects that its attendance will grow approximately three to four percent per year over the next 20 years The Application was originally submitted on April 14, 2004, and was amended on October 6, A hearing was originally scheduled before the Board on the Application on December 2, On November 26, 2004, on the Friday of the Thanksgiving holiday weekend and only six days prior to the hearing, the Church received a significantly 25

26 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 26 of 59 revised and expanded Planning Commission Staff Report and Recommendation (the Revised Staff Report ) which raised concerns about the Application that had not been raised in earlier versions of the staff report. The Revised Staff Report was not an evenhanded analysis of the Application, as required by the Code, but instead a brief against the Church s Application. The unusual nature of the Revised Staff Report evidences hostility to the Church Although the Property is designated as a Public/Quasi-Public Facility on the Niwot Community Service Area Map, which constitutes part of the County s Comprehensive Plan, the Revised Staff Report irrationally compared the Church Building to residences, as opposed to comparing it to Niwot High School, located only 1,400 feet from the Property, and also designated as a Public/Quasi- Public Facility on the Niwot Community Service Area Map In order to have sufficient time to adequately respond to the new concerns raised in the Revised Staff Report, the Church tabled its Application After further negotiation with the County land use staff, the Application was again scheduled for a hearing on November 7, The Application complied with all the objective criteria contained in the Code At the November 7, 2005 hearing, the County land use staff again recommended denial of the Application. The County land use staff has consistently recommended denials of the Church s applications, with the exception of the small expansion of the storage building in Docket No. SU

27 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 27 of Each time the County land use staff has recommended denial of an application filed by the Church, it has focused on subjective criteria, not subject to measurement or quantification, such as compatibility At the November 7, 2005 hearing, the Board continued the hearing and requested that the Church submit a detailed description of the precise uses to which each area of the proposed addition would be put and of how such uses constituted a religious exercise The additional information requested by the Board is not required by the provisions of the Code, and on information and belief, the Board has never requested such information from any other applicant in connection with any land use application The Church complied with the Board s request and, by letter dated November 18, 2005, provided the information that the Board had requested. The November 18, 2005 letter submitted by the Church is eight pages in length, accompanied by numerous exhibits, and describes in great detail how all areas of the proposed expansion are to be used and how such use constitutes a religious exercise. Exhibits E and F of the November 18 letter are a plan of the Church Building, including the proposed expansion, color coded to show the religious uses to be conducted in each area of the Church Building, and an appendix explaining the color codes Each of the uses to be made of the proposed Church Building is directly related to one or more of the five religious practices central to the Church s mission, namely worship, fellowship, discipleship, ministry and evangelism. 27

28 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 28 of On December 8, 2005, the Church received six written questions from the Board via the Director seeking additional information. The Church responded to the Board s questions in a five-page letter dated January 5, The Board held continued hearings on the Application on January 17, 2006, and again on February 2, During the course of the proceedings on the Application, members of the Board and other County officials expressed animus toward the Church and its members by, among other things, referring to Christians in a disparaging manner and criticizing the conduct of the Church s Sunday School classes for not following the traditional forms of Sunday School. Additionally, when a hearing was held on the Application before the County s Planning Commission, a member of the Planning Commission frankly acknowledged that a long-standing goal of the County is to stop the growth of the Church The Board, by voice vote on February 2, 2006, denied the Application (the Oral Denial ), but authorized two minor changes on the Property: an increase of the seating capacity in the sanctuary from 1,400 to 1,550 seats with no associated increase in square footage, and the construction of up to 10,000 square feet of permanent floor area to replace the 7,200 square feet of temporary modular buildings on the Property. The 10,000 square feet number did not match any portion of the Application and was arbitrarily decided upon by the Board On February 21, 2006, the Board passed Resolution No (the Written Denial ), which set forth in writing its decision taken at the February 2, 28

29 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 29 of hearing. A copy of the Written Denial is attached hereto and incorporated herein by reference as Exhibit B. In both the Oral Denial and Written Denial, the Board indicated that the two minor changes it approved were the only elements of the Application which can meet the criteria for special use review In both the Oral Denial and the Written Denial, the Board stated it believed that its decision to deny the [Application], as set forth herein, does not pose a substantial burden on the Church s or its members or attendees exercise of religion, but acknowledged that it was not the final or even appropriate arbiter of this conclusion. It then directed the County attorney to sue the Church in federal district court to determine whether the [Board s] decision on the [Application] complies with the mandates of the federal Religious Land Use and Institutionalized Persons Act The authority to adopt zoning regulations is delegated by the General Assembly to counties in sections through 1118, C.R.S. (2005) Sections and -113, C.R.S. (2005) require, as a prerequisite to the exercise of zoning power by a county, that the planning commission make and certify to the county commissioners a zoning plan including the full text of the zoning resolution and the map The Code constitutes the County s zoning resolution as required by Sections and The procedures and the Board s duties with respect to an application for approval of a special use are set forth in Article 3 of the Code. Article 3 does not authorize or contemplate the Board suing an applicant in federal court. 29

30 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 30 of In addition to being outside of its authority, the Board s decision to drag an applicant for a religious land use into federal court will have an unconstitutional chilling effect on all future applicants for religious land uses. On information and belief, the Board s motive in authorizing a federal lawsuit against the Church was to retaliate against the Church for its request that the Board consider the Application in accordance with the provisions of RLUIPA and to discourage or chill other applicants for religious land uses from requesting that the Board apply RLUIPA in making land use decisions The Board denied the Application on three grounds, namely that the proposed use is not in harmony with the character of the neighborhood and compatible with surrounding areas, that the proposed use is not consistent with the Comprehensive Plan because it is within the Niwot Buffer Zone and is upon lands designated as Agricultural Lands of National Significance, and the proposed use will result in an over-intensive use of the lands or excessive depletion of natural resources Each of the stated grounds for denial is a subjective criterion applied inconsistently by the Board as it suits the purposes of the Board. For example, the County land use staff recommended denial of the 1997 Application on each of the same grounds and recommended denial of the 2002 Application on some of the same grounds The staff s practice of consistently recommending denial of applications based upon subjective criteria is part of the Exemption Policies and Practices that vest unbridled discretion in the Board to approve or deny an application. This results from the fact that under Colorado law, in most circumstances, the decision 30

31 Case 1:06-cv REB-BNB Document 25-1 Filed 05/12/2006 Page 31 of 59 of the Board with respect to a special use application may only be reversed if it is not supported by any competent evidence. The staff report provides the modicum of evidence necessary to uphold a denial, and an applicant s presentation will provide the modicum of evidence necessary to uphold an approval. The result is that the Board then has unbridled discretion For example, the Board has granted special use applications for secular assemblies in the Agricultural Zone District on lands designated as Agricultural Lands of National Significance, including two applications by the Boulder County Open Space Department for a cultural center just west of Longmont and for the Rock Creek Farm Meeting Center. The Board has also approved special use applications by secular private schools in the Agricultural Zone District on lands designated as Agricultural Lands of National Significance, including one for a secular private school of 420 students that has been authorized to construct a gymnasium for its students. Although the Church s Application included a proposed gymnasium and the Oral Denial and the Written Denial determined which parts of the Application can meet the criteria for special use review, the Oral Denial and Written Denial denied the Church a gymnasium. The Church and the Christian Academy have outgrown the current gymnasium on the Property, and lack of the requested gymnasium hinders the Church s sports ministry and Christian education which involves education of mind, body and soul. It also hinders the religious exercise of fellowship as more fully described above. The Board has also approved other development within the Niwot Buffer Zone and on lands designated as Agricultural Lands of National Significance. 31