Hand of Hope Pregnancy Resource Center (“Hand of Hope”) is a non-profit  in Raleigh, North Carolina with the mission to “affirm the value of life from conception by compassionately sharing the gospel of Jesus Christ[.]”  It offers clients prayer, Bible study, and spiritual counseling, as well as free reproductive healthcare information, physician-quality pregnancy testing, limited obstetrical ultrasounds, pregnancy counseling and support, post-abortion support, and life skills classes.

In December 2015, Hand of Hope purchased a single family home in a Residential, Special Highway Overlay District (the “Property”) with the intention of relocating its operations to the Property.  The Property is across the street from an abortion clinic, but the clinic is located in an Office-Mixed Use zone, where medical uses are permitted by right.  Although “civic uses” are permitted at the Property, “medical uses” are not.  After Hand of Hope purchased the Property, it consulted with City zoning staff and was advised that a rezoning would be required to permit its operations.  In July 2016, the City Council denied Hand of Hope’s rezoning application,  reasoning that “lot-by-lot piecemeal” rezoning would have an adverse impact on surrounding properties including neighboring residential uses.

Hand of Hope then filed the instant lawsuit.  Shortly thereafter, upon a suggestion from the City’s attorney, Hand of Hope sought a zoning determination as to whether its operations fit within the definition of a “civic use,” which is permitted without rezoning.  The zoning determination was considered by the City’s Board of Adjustment, which concluded that Hand of Hope’s use was indeed a medical use and not permitted in the residential zoning district.  It based its decision on the fact that Hand of Hope would perform ultrasounds to confirm pregnancy by licensed nurses under the supervision of a medical director.

Following the Board of Adjustment decision, Hand of Hope amended its complaint to set forth the full procedural history of the zoning interpretation process.  Hand of Hope moved for partial summary judgment against the City with respect to its claims under the Equal Terms provision of RLUIPA, the Free Speech Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.  The City cross-moved for summary judgment on the same three claims.

Equal Terms & Questions of Fact:  Hand of Hope alleged an as applied Equal Terms challenge on the grounds that the City permits non-religious assemblies and “like uses” in residential zones.  After examining the three prevailing Equal Terms tests across the circuit courts [(i) the “regulatory purpose test” in the Third Circuit; (ii) the “accepted zoning criteria test” in the Seventh Circuit; and (iii) the “functional intents and purposes test” in the Eleventh Circuit], it applied the “accepted zoning criteria test,” which considers whether the plaintiff’s and the selected comparators’ land uses can be distinguished based on “accepted zoning criteria” that define the relevant zoning district.  Out of four potential comparators presented by Hand of Hope, the Court found that only one—an EMS station—could serve as a non-religious comparator.  The Court concluded that the Equal Terms claim could not be decided on summary judgment, because a factual issue exists over whether Hand of Hope met its burden to show that it fulfills the accepted zoning criteria in the same way as its identified comparators, which operate solely civic uses.

Free Speech Claim Dismissed: Hand of Hope argued that an ultrasound is a form of protected speech and regulation of the same must be judged under a strict scrutiny standard.  The Court found no evidence that the City’s denial of the rezoning request was based on or influenced by Hand of Hope’s religious message.  The Court found that the zoning code’s use regulations were content-neutral time, place and manner restrictions that are narrowly tailored to its significant interest in protecting residential neighborhoods from incompatible development.  Further, the City’s zoning code leaves ample alternative channels to share Hand of Hope’s religious message.

Equal Protection Claim Dismissed:  Hand of Hope’s Equal Protection claim also failed.  Hand of Hope pursued both “selective enforcement” and “class one” theories; under each theory, a plaintiff must show that it is similar “in all material respects” to its proposed comparators. The Court concluded that Hand of Hope’s proposed medical activities at the Property (e.g. ultrasound interpretation and HIPPA compliance) significantly differentiated Hand of Hope from other religious and educational uses permitted in residential districts.  Since an adequate equal protection comparator was not presented, the Court dismissed the count.

Preliminary Injunction Denied:  To obtain an injunction, Hand of Hope would have had to make a “clear showing” that it was likely to succeed on the merits of its claims.  Since the constitutional claims were dismissed and a significant question of fact exists as to whether its Equal Terms claim is viable, a preliminary injunction, the Court reasoned, is not supported by any of these three claims.  Therefore, the Court considered Hand of Hope’s likelihood of success on its substantial burden claim that was not otherwise the subject of summary judgment.  Hand of Hope was aware at the time of purchase that it would likely need to rezone the Property before it began operations.  Therefore, the Court concluded that it did not have a reasonable expectation that it would be permitted to operate at the Property.  Since the Fourth Circuit considers a plaintiff’s reasonable expectations as part of the substantial burden analysis, the Court concluded that Hand of Hope did not make a “clear showing” that it is likely to succeed on its claims.

The Court’s decision in Hand of Hope Pregnancy Resource Center v. City of Raleigh is available here.

Original photo by Jeremy Brooks, some rights reserved.