Miller v. City of Burien

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2026
• Docket: 25-1192
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARK MILLER, Pastor; BURIEN FREE No. 25-1192 METHODIST CHURCH, also known as D.C. No. 2:24-cv-01301-BJR Oasis Home Church,

Plaintiffs - Appellants, MEMORANDUM*

v.

CITY OF BURIEN, a municipal corporation; JEFFREY D. WATSON, Planning Representative for the City of Burien; JOSEPH STAPLETON, Building Representative for the City of Burien,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted February 11, 2026 Seattle, Washington

Before: McKEOWN, W. FLETCHER, and BUMATAY, Circuit Judges.

The Burien Free Methodist Church and Pastor Mark Miller appeal from the

district court’s dismissal of their claims for declaratory relief against the City of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Burien. We have jurisdiction under 28 U.S.C. § 1291 and review dismissals under

Federal Rule of Civil Procedure 12(b)(6) de novo. In re Apple iPhone Trust

Litigation, 846 F.3d 313, 317 (9th Cir. 2017). We affirm.

In November 2023, the Church began hosting an encampment of about 100

unhoused persons in its parking lot. In a series of letters, the City informed the

Church that the encampment required a Temporary Use Permit (TUP) under

§ 19.75.010 of the Burien Municipal Code (BMC). The City asked the Church to

submit a two-page application for a TUP, indicating that it supported the Church’s

efforts and had waived the application fee. The Church refused to submit an

application, and continued to host the encampment until February 5, 2024. The

City assessed over $100,000 in fines against the Church for operating the

encampment without a permit, but eventually waived all fines. The Church plans

to host similar encampments in the future. It seeks a declaratory judgment that the

TUP requirement violates the First Amendment and the Religious Land Use and

Institutionalized Persons Act (RLUIPA).

Appellants first claim that the TUP requirement is a facially unconstitutional

prior restraint. Facial challenges are “allowed against laws aimed at expressive

conduct but disallowed against laws of general application not aimed at conduct

commonly associated with expression.” Spirit of Aloha Temple v. Temple of Maui,

49 F.4th 1180, 1188 (9th Cir. 2022) (citing S. Or. Barter Fair v. Jackson County,

2 25-1192 372 F.3d 1128, 1135 (9th Cir. 2004)). The challenged TUP provision of the BMC

is not addressed to expressive conduct. Rather, the BMC requires a TUP to use a

parking lot for a monthslong encampment. The facial prior restraint challenge

therefore fails.

Appellants next claim that the TUP requirement fails strict scrutiny under

the Free Exercise Clause. But “a law that is neutral and of general applicability

need not be justified by a compelling governmental interest even if the law has the

incidental effect of burdening a particular religious practice.” Church of the

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531 (1993). Laws that are

generally applicable and neutral need only be rationally related to a legitimate

government interest. San Jose Christian College v. City of Morgan Hill, 360 F.3d

1024, 1031 (9th Cir. 2004). Here, appellants fail to show that the TUP requirement

is not neutral or generally applicable. Secular and religious institutions alike must

apply for a TUP before hosting a monthslong encampment in a parking lot.

Moreover, none of the limited exemptions to the TUP requirement upon which the

Church seeks to rely are comparable to a monthslong 100-person encampment in a

parking lot. Since the TUP requirement is neutral, generally applicable, and

rationally related to legitimate government interests in public safety, appellants’

free exercise claim fails.

Appellants suggest that the City’s efforts to require a TUP constitute

3 25-1192 evidence of non-neutrality because, in their view, the BMC does not require a TUP

for the encampment. We disagree. The BMC requires TUPs for temporary uses

not otherwise permitted under the code. BMC 19.75.010. The Church is

designated as a religious facility, which is defined by the BMC as an establishment

“the principal purpose of which is religious worship,” and includes “related

accessory uses.” BMC 19.10.450. Accessory use is in turn defined as “[a] use that

is subordinate and incidental to a primary permitted use” and is “permitted only in

conjunction with, and because of, the existence of a primary use.” BMC

19.10.011. Parking space is separately defined as “[a]n area . . . for the sole

purpose of parking a motor vehicle.” BMC 19.10.394. Nothing in the City’s

interpretation of the BMC as requiring a TUP for the monthslong encampment in

the Church’s parking lot suggests animus or non-neutrality.

Finally, appellants bring several claims under RLUIPA. A plaintiff asserting

a substantial burden RLUIPA claim must first demonstrate a substantial burden on

religious exercise. Int’l Church of the Foursquare Gospel v. City of San Leandro,

673 F.3d 1059, 1066 (9th Cir. 2011). Appellants’ substantial burden claim fails

because the requirement to apply for a land use permit does not constitute a

substantial burden, especially where there is no indication that an application

would be denied. San Jose Christian College, 360 F.3d at 1035. Appellants next

claim that the TUP requirement violates the equal terms provision of RLUIPA.

4 25-1192 See 42 U.S.C. § 2000cc(b)(1). As discussed above, the TUP requirement does not

subject similarly situated religious and secular institutions to unequal terms.

Appellants’ remaining two RLUIPA claims were not raised in the district court.

“Absent exceptional circumstances, we generally will not consider arguments

raised for the first time on appeal, although we have discretion to do so.” Baccei v.

U.S., 632 F.3d 1140, 1149 (9th Cir. 2011). Even so, these claims fail on the merits.

The discrimination claim under 42 U.S.C. § 2000cc(b)(2) fails because, again,

appellants have not alleged disparate treatment of similarly situated religious and

secular institutions. The “unreasonable exclusion” claim under 42 U.S.C.

§ 2000cc(b)(3) fails because the city is not excluding the Church; it is merely

requiring application for a TUP in order to host a monthslong encampment.

The dismissal by the district court is therefore AFFIRMED.

5 25-1192