AGA Islamic Org v Lilburn 12 09

8/14/2019 AGA Islamic Org v Lilburn 12 09

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7 2 0 0 9ORTHERN DISTRICT OF GEORGIA

A.G.A . ISLAMIC ORGANIZATION, INC ., }}Plaintiff, )1v.)

CITY OF LILBURN, GEORGIA, a )Municipal Corporation of the State )of Georgia; the CITY COUNCIL of )the CITY OF LILBURN; DIANA PRESTON,)Mayor of the City of Lilburn; and )EDDIE PRICE, SCOTT BATTERTON, TIM )DUNN, JOHNNY CRIST, individually )in their Official Capacities as )Members of the CITY COUNCIL )of the CITY OF LILBURN, )1Defendants.)

Verified Complaint for Declaratory Judgment and Petition forInjunction and Mandamus against Defendants, City of Lilburn,Georgia ; the City Council of the City of Lilburn ; Diana Preston,Mayor of the City of Lilburn ; and Eddie Price, Scott Batterton,Tim Dunn and Johnny Crist, individually in their official

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IN THE UNITED STATES DISTRICT COURT

ORIGINAL

CIVIL ACTIONFILE NO .

1 " ' U I - C V - 3 5 , 1 4 9

APPEAL AND VERIFIED COMPLAINT FOR DECLARATORYJUDGMENT AND PETITION FOR INJUNCTION AND MANDAMUSCOMES NOW Plaintiff A .G .A . Islamic Organization, Inc .

("A.G .A ." ) d/b/a Dar-e Abbas Shia Islamic Center ("Dar-e Abbas")and, by and through its counsel of record, files this Appeal and

Case 1:09-cv-03549-TWT Document 1 Filed 12/17/2009 Page 1 of 28


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"Lilburn City Council") is the governing body of the City of340503_ 1

located within this District, all Defendants are residents ofthis District, and the acts described herein occurred within thisDistrict .

3 .

Plaintiff's claims for declaratory and injunctive relief areauthorized by 28 U .S .C . 2201 and 2202, by Rules 57 and 65 ofthe Federal Rules of Civil Procedure and by the general, legaland equitable powers of this Court . Plaintiff's claim fordamages is made pursuant to 42 U .S .C . 1983, 42 U.S .C . 2000cc,and other applicable law .

PARTIES4 .

Plaintiff A .G .A . is a non-profit corporation organized andexisting under the laws of the state of Georgia, with itsprinc ipal place of business located at the Dar - e Abbas IslamicCenter in Lilburn, Georgia .

5 .

Defendant City of Lilburn, Georgia (the "City") is amunicipal corporation of the State of Georgia, and is subject tothe jurisdiction and venue of this Court .

6 .

Defendant City Council of the City of Lilburn, Georgia (the



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Land Lot 147 of the 6th District of Gwinnett County, Georgia at440503_1

Lilburn, Georgia and is subject to the jurisdiction and venue ofthis Court .

7 .

Defendant Diana Preston is the Mayor of the City of Lilburn,Georgia and is subject to the jurisdiction and venue of thisCourt .

8 .

Defendants Eddie Price, Scott Batterton, Tim Dunn and JohnnyCrisp, are members of the Lilburn City Council, and are subjectto the jurisdiction and venue of this Court .

FACTS9 .

This is an appeal of the Lilburn City Council's November 18,2009 denial of a rezoning and special use permit ("SUP") requestby Plaintiff for a mosque worship center, gymnasium and relatedcemetery on 7 .9 acres of real property located at 5064 and 5074Lawrenceville Highway and 238, 288 and 405 Hood Road, in Land Lot147 of the 6th District of Gwinnett County, Georgia (the "NewMosque Property") .

10 .

Plaintiff A .G .A . is the owner of record of approximately 1 .3acres of real property located at 5064 Lawrenceville Highway, in



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the City, Dar-e Abbas provides a place of worship for its

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which the Dar-e Abbas congregation currently worships . ("CurrentMosque Property") .

11 .

The Current Mosque Property is zoned to the C-1(Neighborhood Business) zoning district under the Lilburn ZoningOrdinance .

1 2 .

The Lilburn Zoning Ordinance allows "churches, temples andsynagogues" as permitted uses in the C-1 zoning district, butonly if those uses are located on a site no less than five (5)acres ("Five Acre Restriction") .

13 .

The Dar-e Abbas congregation has worshipped on the CurrentMosque Property for eleven (11) years .

14 .

The Five Acre Restriction for religious institutions in theLilburn Zoning Ordinance was not in effect when the Dar-e Abbascongregation began worshipping on the Current Mosque Propertyeleven (11) years ago .

1 5 .

Like churches and other religious institutions throughout



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tracts of existing cemeteries, to reorient the burial plots in64 050 3 _ 1

members, religious counseling, religious education andfellowship .

16 .

Over the last few years, membership in the Dar-e Abbascongregation has continued to grow to approximately 250 members,requiring Plaintiff to expand its worship facilities in order tomeet the needs of its growing congregation .

17 .

The existing buildings on the Current Mosque Property do notprovide adequate areas for assembly and worship for Plaintiff'smembers .

18 .

Integral to the religious exercise of Plaintiff's Shia Islamfaith is the ability to bury the deceased so that they are neartheir places of worship and are facing northeast, which requiresburial plots that are oriented from northwest to southeast .

19 .

The Dar-e Abbas congregation has no room on the CurrentMosque Property to bury deceased members of its congregation .

20 .

Because many existing cemeteries do not have this necessaryconfiguration, members of Plaintiff's congregation must buy large



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zoned to the C-1 and R - 1 0 0 zoning classifications .

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accordance with the practice of their faith, which imposes aconsiderable burden on the families of the deceased .

2 1 .

The inability of the congregation to bury their deceasedfamily members at the site of their place of worship constitutesa substantial burden on the exercise of their religion .

22 .

To meet the needs of its growing congregation, Plaintiffseeks to expand the Current Mosque Property to encompass a totalof 7 .9 acres comprising the New Mosque Property and a cemeterysite .

23 .

The New Mosque Property consists of five (5) parcels on 7 . 9acres in the City of Lilburn, Georgia : the Current MosqueProperty (approximately 1 .3 acres located at 5064 and 5074Lawrenceville Highway and zoned to the C-1 zoningclassification) ; approximately four (4) acres located at 288 HoodRoad and zoned to the R-100 zoning classification ; andapproximately 2 .6 acres located at 238 and 405 Hood Road and



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fraternal institutions and meeting halls .

81 40 5 0 3

24 .Plaintiff owns the properties at 5064 and 507 Lawrenceville

Highway and has a contract to purchase the properties at 238, 288and 405 Hood Road_

25 .

Plaintiff's representatives first approached the City ofLilburn about expanding the Dar-e Abbas congregation during thefall of 2008 .

26 .

On November 1 0, 2008, the Lilburn City Council amended theLilburn Zoning Ordinance to provide the Five Acre Restriction forreligious institutions (churches, temples, and synagogues),located as a principal use in the C-1 (Neighborhood BusinessDistrict), C-2 (General Business District), and C-3 (HighwayBusiness District) zoning districts .

27 .

The Lilburn Zoning Ordinance does not require a similaracreage restriction for other institutional uses or places ofassembly located in the C-1, C-2 or C-3 zoning districts,including community centers, playgrounds, parks, clubs, lodges,



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constructed behind the mosque to serve the needs of its members .

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28 .

The Lilburn City Council's November 10, 2008 text amendmentimposing the Five Acre Restriction on religious institutionslocated in the C-1 zoning classification changed the zoning onthe Current Mosque Property from a legal use to a legalnonconforming use .

29 .

On or about September 15, 2009, Plaintiff submitted arezoning application to the City of Lilburn to change the zoningclassifications on the New Mosque Property from C-1 and R-100 toRA-200 and an application for a Special Use Permit (collectivelythe "Applications") to construct a new place of worship with acemetery and a gymnasium .

30 .

The proposed new mosque would consist of rooms normallyassociated with a place of worship : a main hall for worship,classrooms, small offices and a social hail with a kitchen formeals associated with religious ceremonies and services .

31 .

Plaintiff also requested that a cemetery and gym be



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religious exercise .11405031

37 .

Normally, the City's Planning and Economic DevelopmentDepartment Staff reviews zoning and special use permitapplications and makes a recommendation to the City Council .

38 .However, due to the controversial nature of the

Applications, the City contracted with an independent land useconsultant to review the zoning and special land use permitapplication and issue a recommendation to the City Council .

39 .

The independent land use consultant recommended approval ofthe Applications with certain conditions, all of which wereacceptable to Plaintiff .

40 .Nevertheless, on November 18, 2009, Defendants voted to deny

the Applications without any attempt to accommodate Plaintiff'srequest to use the New Mosque Property in the exercise of theirreligion, and without any factual or legal basis .

41 .Denial of the Applications forces Plaintiff to operate in

inadequate facilities and prohibits the internment of loved onesnear their place of worship, thereby impeding Plaintiff's



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governmental interest .1 24 0 5 0 3 _ 1

42 .

The Zoning Ordinance, as applied to Plaintiff, treatsreligious organizations and institutions on less than equal termswith non - religious assemblies and ins titutions .

43 .

Defendants' conduct was prompted or substantially caused byPlaintiff's religious exercise in attempting to establish a placeof worship on the New Mosque Property .

44 .As a result of the denial of the Applications and the

existing zoning classifications on the New Mosque Property,Plaintiff has suffered and will continue to suffer a significantdetriment .

45 .

In denying the Applications, Defendants made anindividualized land use assessment .

4 6 .

Defendants' denial of the Applications imposes a substantialburden on Plaintiff's religious exercise, for which Defendantshave not demonstrated that imposition of the burden is infurtherance of a compelling governmental interest and is theleast restrictive means of furthering that compelling



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damaged irreparably and does not have an adequate remedy at law .1340503_1

47 .

The denial of Plaintiff's Applications unreasonably limitsreligious assemblies, institutions, or structures within thejurisdiction .

48 .The Five Acre Restriction on its face unreasonably limits

religious assemblies, institutions, or structures within ajurisdiction .

49 .The Five Acre Restriction on its face discriminates against

Plaintiff on the basis of religion .50 .

Defendants had no constitutionally reasonable basis fortheir refusal to approve the Applications .

5 1 .

Denial of the Applications constitutes an arbitrary andcapricious act with no rational basis therefor .

52 .

Plaintiff has exhausted any and all administrative remediesavailable as a result of Defendants' denial of the Applications .

53 .

As a result of Defendants' actions, Plaintiff has been



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herein .

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54 .As a result of Defendants' actions, Plaintiff has been

forced to engage the services of the undersigned attorneys torepresent its interests herein .

55 .

Plaintiff has a clear legal right to approval of theApplications . Defendants clearly abused their discretion indenying the Applications .

56 .

This Complaint presents a case of actual controversy amongthe parties, which is appropriate for resolution by declaratoryjudgment, as provided in 28 U .S .C . 2201, FED . R . CIV . P . 57 andO .C .G .A . 9-4-1 et seq .

COUNT IDECLARATORY JUDGMENTRELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT

57 .

Plaintiff hereby realleges and incorporates by reference theforegoing paragraphs of this Complaint as if fully set forth



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Applications is a violation of RLUZPA, 42 U .S .C . 2000cc .

1 540 5 0 3

5 8 .Plaintiff is entitled to a declaration that denial of the

Applications imposes a substantial burden on Plaintiff'sreligious exercise for which Defendants have not demonstratedthat imposition of the burden is in furtherance of a compellinggovernmental interest and is the least restrictive means offurthering that compelling governmental interest .

59 .

Plaintiff is entitled to a declaration that the LilburnZoning Ordinance, on its face and as applied to Plaintiff, treatsreligious organizations and institutions on less than equal termswith non-religious assemblies and institutions .

60 .

Plaintiff is entitled to a declaration that the LilburnZoning Ordinance, on its face and as applied to Plaintiff,discriminates against Plaintiff on the basis of religion orreligious denomination .

61 .Plaintiff is entitled to a declaration that denial of the



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free exercise of religion .

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COUNT z zFIRST AMENDMENT TO UNITED STATES CONSTITUTION62 .

Plaintiff hereby realleges and incorporates by reference theforegoing paragraphs of this Complaint as if fully set forthherein .

63 .

The First Amendment to the United States Constitutionprovides that

Congress shall make no law respecting an establishmentof religion, or prohibiting the free exercise thereof ;or abridging the freedom of speech, or of the press ; orthe right of the people peaceably to assemble, and topetition the Government for a redress of grievances .

U .S . CONST . amend . I .64 .

Plaintiff is entitled to a declaration that denial of theApplications is a violation of its First Amendment right to itsfree exercise of religion .

65 .

Plaintiff is entitled to a declaration that the Five AcreRequirements is a violation of its First Amendment right to its



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governmental interest and is the least restrictive means of17405031

66 .

Plaintiff is entitled to a declaration that the Denial ofthe Applications is a violation of its First Amendment right toits freedom of speech .

67 .

Plaintiff is entitled to a declaration that the Five AcreRestriction is a violation of its First Amendment right to itsfreedom of speech .

COUNT III42 U .S .C . 1983

68 .


69 .All of the Acts of Defendants complained of in this

complaint were performed under color of state law .70 .

Denial of the Applications is unconstitutional in that itimposes a substantial burden on the religious exercise of thePlaintiff, for which Defendants have not demonstrated thatimposition of that burden is in furtherance of a compelling



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Plaintiff, without provision for prior payment of just and184 0 5 0 3 _ 1

furthering that compelling governmental interest . 42 U.S .C .2000cc .

71 .

Defendants' conduct in denying the Applications isunconstitutional in that Defendants have imposed a land useregulation in a manner that treats a religious assembly orinstitution on less than equal terms with a nonreligious assemblyor institution .

7 2 .

Defendants' conduct in denying the Applications isunconstitutional in that Defendants have imposed a land useregulation that discriminates against an assembly or institutionon the basis of religion or religious denomination .

73 .

Defendants' conduct in denying the Applications isunconstitutional in that Defendants have imposed a land useregulation that unreasonably limits religious assemblies,institutions, or structures within a jurisdiction .

74 .

Defendants' conduct in denying the Applications isunconstitutional in that it constitutes an excessive regulatorytaking of valuable private property rights belonging to



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States, the free exercise clause of the First Amendment to the19a o s a 3 _ 1

adequate compensation in violation of the Fifth and Fourteenthamendments to the United States Constitution .

75 .

Defendants' conduct in denying the Applications isunconstitutional in that Defendants have not articulated anystandards or criteria or any objective factual basis to supportthe denial ; and, as such, Defendants have violated Plaintiff'sdue process rights, which are protected by the Fifth andFourteenth amendments to the United States Constitution .

76 .

Defendants' conduct in denying the Applications isunconstitutional in that Defendants' action is arbitrary,capricious, and without any objective basis, and discriminatesbetween Plaintiff and other similarly situated individuals inviolation of Plaintiff's rights to equal protection under theFifth and Fourteenth amendments to the United StatesConstitution .

77 .Plaintiff has a right of action pursuant to 42 U .S .C . 1983

for Declaratory Judgment for the redress of the denial of rightsprotected by the due process and equal protection clauses of theFifth and Fourteenth Amendments to the Constitution of the United



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Applications ; and, as such, Defendants have violated Plaintiff's2040503_ 1

Constitution of the United States and the Religious Land Use andInstitutionalized Persons Act, 42 U .S .C . 2000, et seq .

78 .

Plaintiff is entitled to recover reasonable attorneys fees,expenses of litigation, and other costs incurred in an effort tovindicate Plaintiff's constitutionally protected rights under theFirst, Fifth and Fourteenth Amendments to the Constitution of theUnited States as authorized by 42 U .S .C . 1988 .

COUNT IVSTATE LAW CLAIMS

79 .Plaintiff hereby realleges and incorporates by reference the

foregoing paragraphs of this Complaint as if fully set forthherein .

80 .

Plaintiff is entitled to a declaration that the action takenby Defendants, denying the Applications, is unreasonable and voidand bears no substantial relation to the public health, safety,morality, or general welfare .

81 .

Plaintiff is entitled to a declaration that Defendants hadno objective factual basis to support the denial of the



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Article I, I, III of the Georgia constitution .21405031

due process rights, which are protected by the GeorgiaConstitution Article I, I, 1 and III, 1 .

82 .

Plaintiff is entitled to a declaration that the denial ofthe Applications discriminates between Plaintiff and othersimilarly situated individuals and businesses in violation ofPlaintiff's right to equal protection under the GeorgiaConstitution Article I, I, II .

83 .

Plaintiff is entitled to a declaration that the denial ofthe Applications interferes with Plaintiff's right to worship inaccordance with Plaintiff's freedom of conscience as secured byArticle I, I, III of the Georgia Constitution .

84 .

Plaintiff is entitled to a declaration that the denial ofthe Applications interferes with Plaintiff's right to freedom ofreligion as secured by Article T, Y, IV of the GeorgiaConstitution .

85 .

Plaintiff is entitled to a declaration that the Five AcreRestriction interferes with Plaintiff's right to worship inaccordance with Plaintiff's freedom of conscience as secured by



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of the Property for which compensation is required by law .

224 05 0 3 _ 1

86 .

Plaintiff is entitled to a declaration that the Five AcreRestriction interferes with Plaintiff's right to freedom ofreligion as secured by Article I, I, IV of the GeorgiaConstitution .

87 .

Plaintiff is entitled to a declaration that the C-1 andR-100 zoning classifications as applied to the New MosqueProperty is unconstitutional for the reasons stated herein .

88 .

Plaintiff is entitled to a declaration that the Five AcreRestriction is unconstitutional for the reasons stated herein .

COUNT IVINVERSE CONDEMNATION

89 .


90 .

The actions of Defendants constitute an inverse condemnation



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restraining order and interlocutory injunction restraining

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COUNT VMANDAMUS

91 .


92 .

Plaintiff has a clear legal right to use and develop theProperty as a place of worship with a cemetery as requested inthe Applications .

93 .

A defect of legal justice would ensue if mandamus is notissued and Plaintiff has no other specific legal remedy .

COUNT VIINJUNCTION

94 .


95 .

Plaintiff is entitled to the issuance of a temporary



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unreasonable, illegal, null and void on its face and as applied

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Defendants from prohibiting Plaintiff to use the Property as aplace of worship in the free exercise of its religion .

WHEREFORE, Plaintiff prays as follows :(a) That this Court declare that the actions of Defendants

constitute a violation of the Free Exercise Clause of the FirstAmendment to the United States Constitution and a violation ofthe Religious Land Use and Institutionalized Persons Act, 42U .S .C . 2000cc ;

(b) That this Court declare that the actions of Defendantsconstitute a violation of Plaintiff's rights of due processunder the Fifth and Fourteenth amendments to the United StatesConstitution and the Georgia Constitution Article I, I, 1 and III, 1 ;

(c) That this Court declare that the action taken by theDefendants, denying the Applications, is unconstitutional,arbitrary, capricious and unreasonable, illegal, null and void asapplied to the Property and results in a taking of thePlaintiff's Property without just compensation in violation ofstate and federal law ;

(d) That this Court declare that the existing LilburnZoning Ordinance is unconstitutional, arbitrary, capricious and



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result of Defendants, actions in denying the Applications ;

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to the Property, and results in a taking of the Plaintiff'sProperty, without just compensation ;

(e) That this Court declare that the action taken by theDefendants, denying the Application, is unconstitutional,arbitrary, capricious and unreasonable as applied to the Propertyand violates Plaintiff's rights to equal protection under thelaw ;

( f ) That this Court declare that the action taken by theDefendants, denying the Applications, is unreasonable, and bearsno rational relationship to the public health, safety, morals andwelfare ;

(g) That this Court declare the actions of Defendants tohave resulted in an inverse condemnation of Plaintiff's Property ;

(h) That this Court declare that Plaintiff has a clearlegal right to approval of the Applications ;

(i) That this Court annul and set aside the denial of theApplications ;

(j) That a writ of mandamus issue ordering Defendants toapprove the Applications ;

(k ) That this Court award damages to Plaintiff in an amountsufficient to compensate Plaintiff for the damages incurred as a



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Attorneys for Plaintiff3500 Lenox Road, N .E ., Suite 760Atlanta, Georgia 30326(404) 965-3680(404 965-3670 (fax)andrea@dandglaw .com e-mail

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(1) That Plaintiff recover attorneys fees and expensesincurred in this matter; and

(m) That Plaintiff has any and all further and other reliefas this Court may deem just and proper under the circumstancesand evidence presented .

Respectfully submitted,DILLARD & GALLOWAY, LLC

By :

G . Douglas DillardState Bar No . 221900Andrea Cantrell JonesState Bar No . 398440Lauren M . HansfordState Bar No . 497507



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VERIFICATION

SWORN TO AND SUBSCRIBEDBef re Me This 16 '~' Dayof~e L L - l e{,2Q09(AFFIX N4iT,AR14 ~SEAL)

EXPIRESNota ly 16 ~1IA2PRIL 19,201My CATs~,UB~ (F,~ s

. .y .

I IIif /1L111 S5140503_1 2 7

STATE OF GEORGIACOUNTY OF FULTON

Personally appeared before the undersigned notary publicduly authorized in the State of Georgia to administer oaths,SHAJEE ALI SYED, after being duly sworn, deposes and states thatthe facts contained in the attached APPEAL AND VERIFIED COMPLAINTFOR DECLARATORY JUDGMENT AND PETITION FOR INJUNCTION AND MANDAMUSare true and correct .

This /6'~"Uday of December 2009 .A.G .A . ISLAMIC ORGANIZATION, INC .

By : SHAJEE A I SYED, GENERAL SECRETARY



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Respectfully submitted,DILLARD & GALLOWAY, LLC

Andrea Cantrell JState Bar No . 398

Attorneys for Plaintiff3500 Lenox Road, N .E ., Suite 760Atlanta, Georgia 30326(404) 965-3680(404) 965-3670 (facsimile)

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CERTIFICATE OF COMPLIANCE WITH L .R .5 . 1BI certify pursuant to L .R . 7 .1D that the above-titled

document complies with L .R . 5 .1B and was prepared using a 12point Courier font .

By :


AGA Islamic Org v Lilburn 12 09

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