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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA Case No. 5:16-cv-746 A HAND OF HOPE PREGNANCY RESOURCE CENTER, a North Carolina not-for-profit corporation, doing business and ministry as Your Choice Pregnancy Clinic, Plaintiff,

VERIFIED COMPLAINT

v.

Jury Trial Demanded

CITY OF RALEIGH, a North Carolina municipal corporation, Defendant. Plaintiff, A Hand of Hope Pregnancy Resource Center, a North Carolina not-for-profit corporation (“Hand of Hope”), on behalf of itself, the women who seek and may seek its pregnancy education and support, and their preborn children, by and through its attorneys, allege as follows: NATURE OF THE CASE 1.

This case challenges the City of Raleigh’s decision to prohibit Hand of Hope from

using its property at 1522 Jones Franklin Road (the “Property”)—which is adjacent to the Preferred Women’s Health abortion clinic—as a location from which Hand of Hope can communicate its life-affirming, Gospel-centered message and offer free pregnancy education and support to women facing the challenges of an unplanned pregnancy, miscarriage, or abortion. 2.

Plaintiff seeks injunctive, declaratory and monetary relief for the violation of its

rights under the First and Fourteenth Amendments to the United Sates Constitution as well as under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (“RLUIPA”).

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PARTIES 3.

Plaintiff, Hand of Hope, is a religious organization structured as a North Carolina

not-for-profit corporation. Hand of Hope operates the religious ministry called “Your Choice Pregnancy Clinic,” which is to be located at 1522 Jones Franklin Road. Hand of Hope’s principal place of business is in Wake County, North Carolina. 4.

Hand of Hope has associational standing to challenge Raleigh’s zoning laws and

actions on behalf of (1) the women who seek and may seek its pregnancy education and support and (2) the unborn children who would benefit from their mothers’ being fully informed about their development and about abortion. 5.

Defendant, City of Raleigh, North Carolina (“Raleigh” or the “City”), is a

municipal corporation located in Wake County, North Carolina, and through its City Council, is responsible for the enactment and enforcement of the ordinances and actions challenged herein. JURISDICTION AND VENUE 6.

This Court has subject matter jurisdiction over this case pursuant to 28 USC § 1331,

as this action arises under the First and Fourteenth Amendments to the United States Constitution; under RLUIPA, 42 U.S.C. § 2000cc 1, et seq.; under 28 USC § 1343(a)(3), in that it is brought to redress constitutional violations and deprivations of law under color of state law, of rights, privileges and immunities secured by the United States Constitution; under 42 USC § 1983, which provides causes of action for the protection of civil and constitutional rights and damages; and under 42 USC § 1988, to secure costs and attorney’s fees as part of the case. 7.

Venue is proper in this District because the events complained of occurred, and the

Defendant is located, within this District pursuant to 28 U.S.C. §1391(b).

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HAND OF HOPE 8.

In 2004, a small group of Christians were finishing a Bible study called “Purpose

Driven Community.” The end goal of the study was to identify and meet a need in the community. Led by the Holy Spirit which moved on their hearts for the pregnant women in the community, the group, led by Tonya Baker Nelson, organized and founded what is known today as A Hand of Hope Pregnancy Resource Center. 9.

Hand of Hope’s mission is to “affirm the value of life from conception by

compassionately sharing the gospel of Jesus Christ; and assisting individuals facing the challenges of an unplanned pregnancy, to minister to the emotional and spiritual needs resulting from abortion to miscarriage and to promote sexual abstinence until marriage.” A true and accurate copy of Hand of Hope’s Mission Statement is attached hereto as Exhibit A and incorporated herein by reference. 10.

Hand of Hope’s ministry was established in accordance with and is compelled by

the Biblical mandate set forth in Lamentations 2:19, “Arise, cry out in the night, at the beginning of the watches; pour out your heart like water before the face of the Lord. Lift your hands toward him, for the life of your young children…” Ex. A. 11.

Hand of Hope “is an outreach ministry of Jesus Christ through His church” that is,

inter alia, committed to providing women with free, “accurate and complete information about both prenatal development and abortion.” A true and accurate copy of Hand of Hope’s “Statement of Principle” and “Statement of Faith” is attached hereto as Exhibit B and incorporated herein by reference. 12.

Hand of Hope also operates its ministry under the name “Your Choice Pregnancy

Clinic” as shown in its logo below:

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13.

Hand of Hope’s outreach ministry includes the following activities: a. Sharing the message of God’s love and provision for expectant mothers and fathers in the context of their unplanned pregnancy and for those who have had miscarriages and abortions; b. Providing free pregnancy education to expectant mothers and fathers; c. Providing free pregnancy support services including physician-quality pregnancy testing, limited obstetrical ultrasounds (which provide the mothers and fathers a window into the womb and reveal an image of their preborn children), pregnancy counseling, Life Skills classes, and post-abortion support counseling; d. Bible studies; and e. Providing accurate and essential education regarding the physical, emotional and spiritual consequences of abortion.

14.

Tonya Baker Nelson is the founder and executive director of Hand of Hope.

15.

Ms. Nelson’s personal experience with her own unplanned pregnancy, which she

describes in more detail on Hand of Hope’s website at http://www.handofhope.net/#/aboutus/who-we-are, gave her the eyes to see the need for Hand of Hope’s ministry and to understand how beneficial free pregnancy education, limited ultrasounds, and loving support can be to the women, men, and children involved.

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BACKGROUND OF THE PROPERTY 16.

The property located at 1522 Jones Franklin (the “Property”), pictured in the

Google earth™ aerial image below, is a .9 acre parcel immediately adjacent to the abortion clinic, A Preferred Women’s Health Center of Raleigh, located at 1604 Jones Franklin Road shown below:

17.

The Property is currently improved with a single family house.

18.

The surrounding uses are primarily office, low density residential, and low-scale (3

stories) multi-family residential.

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19.

When Hand of Hope was informed that the Property was going to be sold in late

2015, the ministry believed that the location adjacent to the abortion clinic was a unique, Godgiven opportunity to reach the women and men facing the challenges of an unplanned pregnancy and abortion with their pro-life message, particularly those heading in and out of the adjacent abortion clinic, and to minister to their emotional and spiritual needs resulting from their unplanned pregnancies, abortions, or miscarriages. 20.

Believing they were called by God to purchase this Property, Hand of Hope, on

December 18, 2015, purchased the Property for $309,000. 21.

Upon information and belief, the Property had been used as a single family

residence before it was sold to Hand of Hope in 2015. HAND OF HOPE’S PLANNED MINISTRY AND SPEECH AT THE PROPERTY 22.

Since 2005, Hand of Hope has offered and conducted the following ministries, all

of which are compelled by and integral to the sincerely held religious beliefs of Hand of Hope, its board, its volunteers, and its staff: a. Sharing the Gospel of Jesus with expectant mothers and fathers in the context of their unplanned pregnancy, see Mark 16:15 (“Go into all the world and proclaim the gospel to the whole creation.”); b. Providing free pregnancy education to expectant mothers and fathers, see Lamentations 2:19 (“Arise, cry out in the night, at the beginning of the watches; pour out your heart like water before the face of the Lord. Lift your hands toward him, for the life of your young children…”); c. Providing free pregnancy support services including physician-quality pregnancy testing, limited obstetrical ultrasounds, pregnancy counseling, Life

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Skills classes, and post-abortion support counseling, see James 2:16 (“and if one of you says to them, ‘Go in peace, be warmed and filled,’ without giving them the things needed for the body, what good is that?”); d. Bible studies, see 1 Timothy 4:13 (“Until I come, devote yourself to the public reading of Scripture, to exhortation, to teaching”); e. Providing accurate and essential education regarding the physical, emotional and spiritual consequences of abortion; and f. Prayer meetings, see Acts 1:13-14. 23.

Hand of Hope sought and continues to seek to conduct the aforementioned

ministries at its Property. 24.

Hand of Hope sought and continues to seek to communicate the Gospel and its pro-

life and pro-woman message from its Property in order to inform those coming and going from the abortion clinic about their pregnancy, the life they have within them, and the new life that can be found in Jesus. THE CITY’S REGULATION OF HAND OF HOPE’S DESIRED USE AND SURROUNDING USES 25.

Raleigh has both an Existing Land Use Map, which shows how the land within its

jurisdiction is currently zoned, and a Future Land Use Map, which reflects Raleigh’s Comprehensive Plan and how Raleigh ultimately intends for the land to be zoned. 26.

On the Future Land Use Map shown below, the Property (shown in the bolded

rectangle) is classified as Office/Research & Development as are all adjacent properties:

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27.

Under the Raleigh Code of Ordinances (the “Code�) and Existing Zoning Map

shown below, however, the Property currently lies in a Residential-4 with Special Highway Overlay District-2 (R-4 w/SHOD-2): 8 Case 5:16-cv-00746-BR Document 1 Filed 08/17/16 Page 8 of 28


28.

As shown on the map above, the properties along Jones Franklin Road to the North,

South, and East are all currently zoned Office Mixed Use-3 stories (OX-3).

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29.

Pursuant to Section 10-2017 of the Code, Raleigh permits the following general

uses as of right at the Property in a R-4 w/SHOD-2 district: a. Church, synagogue, or religious education building; or b. Civic club 30.

Sec. 10-2002 entitled “DEFINITIONS” provides that “[a]ll words and terms used

in Part 10 chapters 1 and 2 have their commonly accepted and ordinary meaning unless they are specifically defined in this Code or the context in which they are used clearly indicates to the contrary.” 31.

The terms “Church” “synagogue” or “religious education building” are not

specifically defined in the Code. 32.

The term “Civic Club” is defined in the Code as “a not for profit club for civic,

social or fraternal purposes operated by a civic, social or fraternal organization, including offices for local, state and regional officials, not including a political party club.” 33.

In light of the not-for-profit religious and office uses currently permitted at the

Property, as well as the City’s Comprehensive Plan, Future Land Use Map, the City’s Zoning Staff Report, Planning Commission approval and recommendation, City Compatibility Study, and Office-Mixed Use zoning of the properties to the North, South, and East of the Property, Hand of Hope had a reasonable expectation that the City of Raleigh would permit it to engage in its ministry and have its not for profit offices at the Property. HAND OF HOPE’S EFFORTS TO OBTAIN RALEIGH’S ZONING APPROVAL 34.

In order to obtain Raleigh’s zoning approval of its intended use of the Property,

Hand of Hope applied in April 2016 to have the property rezoned Office Mixed Use in accordance with Raleigh’s Comprehensive Plan, Future Land Use Map, and Office-Mixed Use zoning of the

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properties to the North, South, and East of the Property—including the abortion clinic abutting the Property to the South. A true and accurate copy of Hand of Hope’s Rezoning Request Application filed as Zoning Case Number Z-7-16 is attached hereto as Exhibit C and incorporated herein by reference (the “Application”). 35.

Hand of Hope’s Application was reviewed at several public meetings, including (a)

a Neighbor Meeting on February 12, 2016, (b) a Citizen Advisory Council (“CAC”) meeting on February 23, 2016, (c) another CAC meeting on April 26, 2016, and (d) then before the Raleigh Planning Commission on May 10, 2016. 36.

At the final CAC meeting, Hand of Hope’s Application was approved by a vote of

30 to 17. 37.

At the Planning Commission hearing on May 10, 2016, the Planning Commission

voted unanimously to recommend City Council approval of Hand of Hope’s Application. A true and accurate copy of the Certified Recommendation of the Planning Commission is attached as Exhibit D and incorporate herein by reference. 38.

The Planning Commission found that the requested rezoning was consistent with

Raleigh’s Comprehensive Plan and Raleigh’s Future Land Use Map and that it was not inconsistent with any of Raleigh’s policies. 39.

The Planning Commission also found that Hand of Hope’s proposal was reasonable

and in the public interest. 40.

The Planning Commission found that Hand of Hope’s proposal was compatible

with the surrounding area. 41.

City Zoning Staff also prepared a Report (Ex. D at p. 3) and Compatibility Analysis

(Ex. D at p. 5-6) demonstrating the compatibility of Hand of Hope’s use with the surrounding area.

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42.

Nevertheless, on July 5, 2016, the City Council—disregarding the recommendation

of the Planning Commission, the Zoning Staff, and the vote of the CAC—voted in a final decision to deny Hand of Hope’s Application and thereby prohibit its proposed use of the Property. 43.

The public property in front of the Preferred Women’s Health abortion clinic is a

frequent site for protests by anti-abortion- and abortion- rights groups. In 2015 alone, twenty-six groups were granted protest permits for that location on Jones Franklin Road. Hand of Hope does not participate in protests—none of the group’s 23 staff members were listed on the protest permits. 44.

Upon information and belief, the City Council denied the Application because the

City Council did not want Hand of Hope, which communicated the Gospel message and a pro-life message, located next door to an established abortion clinic. DAMAGE AND IRREPARABLE HARM TO HAND OF HOPE 45.

The City Council’s July 5, 2016 decision is a final decision of the municipality that

caused Hand of Hope immediate injury and infringed upon its exercise of its constitutionally protected freedoms and religious land use. 46.

As a result of the City’s land use regulations and denial of the Application, Plaintiff

has and will continue to experience numerous additional burdens to its religious ministries and free speech including inter alia: a. A like-minded ministry in Raleigh, Birth Choice, relocated beside A Woman’s Choice abortion clinic and has since seen a 25% increase in women served. As such, Hand of Hope anticipated at least a 25% increase in women served upon moving immediately beside A Preferred Women’s Health Center. Delay and inability to do so has had an adverse effect on serving men and women who are in the middle of making a pregnancy decision.

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b. Delay in occupying 1522 Jones Franklin Road results in a delay for reaching 25% more people in our community at a very pivotal moment of crisis in which the lives of a mother, father and preborn baby are affected. c. Budgetary concerns for the purchase of property which is currently unusable for its desired purpose will continue to place a financial strain on the fiscal health of the ministry. d. At the purchase price of $309,000.00, selling the property to another party with the knowledge that the property cannot be petitioned for rezoning for another two years would cause considerable loss of funds for the ministry. e. Financial donors who contributed to the purchase of the property have voiced concerns over the inability to occupy the space for which they contributed. f. Mortgage/lease payments for two properties for one operating ministry is not a wise use of donor funds. g. North Carolina is an informed consent state. Women’s Right to Know certification is provided by Hand of Hope for free for every woman who is considering an elective abortion. This certification is provided by an RN and saves the state of North Carolina money when Medicaid patients utilize the free services Your Choice Pregnancy Clinic provides instead of making an appointment through their local social services agency. h. As a nonprofit, Hand of Hope relies on volunteerism from the Church to help meet the physical, emotional and spiritual needs of their community. Multiple volunteers are waiting patiently to volunteer at 1522 Jones Franklin Road since its operating hours will change upon occupying that space in order to be

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available to women who may need Women’s Right to Know certification or need another listening ear while they are making their pregnancy decision. i.

Hand of Hope provides free Life Skills Classes for individuals. These classes range from prenatal and parenting education to resume writing and job searching. Healthy and informed parents raise healthy and informed children. With an anticipated 25% increase in women served upon occupying 1522 Jones Franklin Road Jones, Hand of Hope can have a positive impact on the community with encouraging healthy, informed, tax-paying citizens to contribute to the overall positive growth of the Raleigh area.

j. The inability to occupy 1522 Jones Franklin Road limits the exposure of Hand of Hope’s free resources to the very demographic for which they are intended. k. Women legally have choices when making a pregnancy decision. Since North Carolina is an informed consent state, Hand of Hope very closely adheres to that law as its own Medical Director helped to write the medical education portion of the law and it is Hand of Hope’s greatest desire to ensure that women are given that education during their decision making process. The delay in occupying 1522 Jones Franklin Road is yet another hindrance to reaching those women with the education they are legally required to receive.

Upon

information and belief, A Preferred Women’s Health Center is not properly presenting—or in some cases is completely bypassing—the informed consent education. Continuing an unexpected pregnancy is a legal right, as is obtaining an elective abortion.

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47.

The City has enforced its land use regulations against Hand of Hope in a way that

violates Hand of Hope’s rights under the United States Constitution, RLUIPA, and in a manner that was arbitrary and capricious. FIRST CAUSE OF ACTION 42 U.S.C. § 1983: Violation of Hand of Hope’s First Amendment Right to Freedom of Expression 48.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 49.

The First Amendment provides that “Congress shall make no law . . . abridging the

freedom of speech.” 50.

Hand of Hope’s ministry of providing free pregnancy education and support

services to and sharing the message of the Gospel with expectant mothers are religious expressive activities fully protected under the First Amendment. 51.

Raleigh’s denial of the Application and prohibition of Hand of Hope’s expressive

activities at its Property is not a reasonable time, place, and manner restriction and denies Hand of Hope the ability to reach its intended audience. 52.

Raleigh’s denial of the Application and Hand of Hope’s expressive activities does

not leave open ample alternative channels of communication. 53.

Raleigh’s prohibition of Hand of Hope’s expressive activities at the Property is not

narrowly tailored to achieve a significant interest. As determined by the Planning Commission, Hand of Hope’s expressive conduct on the Property is consistent with Raleigh’s Comprehensive Plan and Raleigh’s Future Land Use Map and Raleigh’s policies. Hand of Hope’s expressive activity does not implicate any threat to public safety, peace, or order.

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54.

Because Hand of Hope’s primary audience is young women who are or may

become pregnant, the Property is uniquely situated to allow Hand of Hope with the visibility and accessibility necessary to convey Hand of Hope’s message to the young women who go to and from the Preferred Health Clinic. 55.

As a result of Raleigh’s denial of the Application and application of its land use

regulations, Hand of Hope is losing opportunities to express itself—in other words, to inform, minister to, and care for these women. 56.

In addition, Raleigh’s denial of the Application and prohibition of Hand of Hope’s

expressive activity at its Property is based on the content of Hand of Hope’s expressive conduct and is an impermissible content-based restriction. Simply put, Raleigh is censoring Hand of Hope’s exercise of its constitutionally protected expressive conduct based on the content and viewpoint of the communications. 57.

All acts of Raleigh, its officers, agents, servants, employees, or persons acting at

their behest or direction, were done and are continuing to be done under the color and pretense of state law. Unless and until Raleigh is enjoined from applying its land use regulations to prohibit Hand of Hope’s expressive conduct and speech at its Property, Plaintiffs will suffer and continue to suffer irreparable injury to their civil rights. 58.

To vindicate the Plaintiffs’ rights, compensate for the damage that has been done,

and avoid further irreparable harm, Plaintiffs seek declaratory and injunctive relief for violation of their constitutional and statutory rights, as well as compensatory and nominal damages. 59.

Plaintiffs have no adequate or speedy remedy at law to correct or redress the

deprivations of their constitutional and civil rights. 60.

The Defendant City will suffer no harm if the injunctive relief is granted.

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61.

The harm to the Plaintiffs far outweighs any harm to the Defendant, and the public

interest is benefited when constitutional and civil rights are protected. And as the Planning Commission concluded, Hand of Hope’s intended use of the Property is in the public interest. 62.

Hand of Hope is therefore entitled to declaratory relief pursuant to 28 U.S.C. § 2201

declaring Raleigh’s denial of Hand of Hope’s religious expressive activities at the Property and denial of the Application to be unconstitutional and to preliminary and permanent injunctive relief enjoining Defendant from interfering with Hand of Hope’s expressive activities at the Property. 63.

Hand of Hope is further entitled to an award of its costs in this action, including

attorneys’ fees, pursuant to 42 U.S.C. § 1988. 64.

As a result of Raleigh’s unconstitutional actions and denial, Hand of Hope has

suffered actual damages in an amount to be proven at trial. SECOND CAUSE OF ACTION 42 U.S.C. § 1983: Undue Burden on a Woman’s Fundamental Right to Acquire Useful Knowledge and Care for Her Unborn Child under the United States Constitution 65.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 66.

The United States Supreme Court has held that a woman has a fundamental right

to be free from governmental interference with her pregnancy decision. 67.

The Fourteenth Amendment of the United States Constitution has been read to

guarantee women the fundamental right to conceive and care for their children, as well as to acquire useful knowledge about pregnancy. 68.

Raleigh’s decision to deny Hand of Hope’s ability to provide the women of Raleigh

the free pregnancy information and ultrasounds also infringes on what the Supreme Court has

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determined is the women’s rights to be informed and to choose in the context of their own pregnancies. 69.

Raleigh’s imposition of its zoning regulations to deny Hand of Hope’s ability to

provide women the free pregnancy information and ultrasounds is “unduly burdensome to the right of a woman to choose life.” See, Life Ctr., Inc. v. City of Elgin, 993 F. Supp. 2d 863, 871 (N.D. Ill. 2013). 70.

As applied, Raleigh’s land use regulations place a substantial obstacle in the path

of women who are in need of, have sought or are seeking Hand of Hope’s free pregnancy education, useful knowledge, and support in order to make an informed choice in the context of and care for their own pregnancies. 71.

Unless restrained by this Court, Raleigh will continue to apply and enforce its land

use regulations in a manner which threatens, interferes with, and unduly burdens the fundamental rights of the women who seek and may seek the free education and support offered by Hand of Hope. 72.

All acts of Raleigh, its officers, agents, servants, employees, or persons acting at

their behest or direction, were done and are continuing to be done under the color and pretense of state law. 73.

Hand of Hope, on behalf of these expectant mothers, is therefore entitled to

declaratory relief pursuant to 28 U.S.C. § 2201 declaring Raleigh’s interference with Hand of Hope’s intended use and provision of free pregnancy education at the Property and denial of the Application to be unconstitutional and to preliminary and permanent injunctive relief enjoining Defendant from denying the Application.

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74.

Hand of Hope, on behalf of these expectant mothers, is further entitled to an award

of their costs in this action, including attorneys’ fees, pursuant to 42 U.S.C. § 1988. 75.

As a result of Raleigh’s unconstitutional interference with Hand of Hope’s intended

use and denial of the Application, these expectant mothers have suffered actual damages in an amount to be proven at trial. THIRD CAUSE OF ACTION 42 U.S.C. § 1983: Violation of Hand of Hope’s Fourteenth Amendment Right to Equal Protection of the Law 76.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 77.

The Fourteenth Amendment to the United States Constitution guarantees Hand of

Hope the equal protection of the laws, which prohibit the Defendant from treating Hand of Hope differently than similarly situated organizations. 78.

By denying Hand of Hope’s use of its Property, Raleigh has treated similarly

situated organizations differently based upon their religious convictions or viewpoints on abortion. 79.

Other organizations—such as churches, synagogues, religious education groups,

and civic clubs—can currently locate their offices and engage in their not-for-profit activities, speech, and expressive conduct at the Property as of right and without requiring prior permission from Raleigh. Raleigh, however, has denied Hand of Hope approval to locate its offices and notfor-profit ministry, speech, and expressive conduct at the Property. 80.

The Preferred Women’s Health Clinic of Raleigh is freely allowed to have its

offices and engage in the provision of its pregnancy and abortion related information without opposition from Raleigh at its location immediately adjacent to the Property.

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81.

Raleigh’s imposition of its land use regulations to deny Hand of Hope violates

various fundamental rights of Hand of Hope, such as its freedom of speech and free exercise of religion. 82.

There is no compelling interest to justify this differential treatment.

83.

There is rational basis sufficient to justify this differential treatment.

84.

Raleigh’s actions have not been narrowly tailored as applied to Hand of Hope

because Hand of Hope’s religiously compelled, expressive activities does not implicate any legitimate state interest. 85.

Raleigh has applied its land use regulations to Hand of Hope in a unequal manner,

allowing other organizations to engage in their speech and expressive conduct while denying Hand of Hope the ability to do the same, in violation of Hand of Hope’s right to equal protection of the laws under the Fourteenth Amendment. 86.

All acts of Raleigh, its officers, agents, servants, employees, or persons acting at

their behest or direction, were done and are continuing to be done under the color and pretense of state law. 87.

Hand of Hope is therefore entitled to declaratory relief pursuant to 28 U.S.C. § 2201

declaring Raleigh’s denial of the Application and Hand of Hope’s intended use of the Property to be unconstitutional and to preliminary and permanent injunctive relief enjoining Defendant from interfering with Hand of Hope’s intended use of the Property. 88.

Hand of Hope is further entitled to an award of their costs in this action, including

attorneys’ fees, pursuant to 42 U.S.C. § 1988. 89.

As a result of Raleigh’s land use regulations and denial of the Application, Hand of

Hope has suffered actual damages in an amount to be proven at trial.

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FOURTH CAUSE OF ACTION 42 U.S.C. § 1983: Undue Burden on Unborn Child’s Fundamental Right to Begin Life with a Sound Body and Mind 90.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 91.

Unless restrained by this Court, Raleigh will continue to apply and enforce its land

use regulations in a manner which threatens, interferes with, and unduly burdens the fundamental rights of unborn children to begin life with a sound mind and body by interfering with the child’s mother ability to receive free pregnancy education and from seeing images of the child which might cause the mother to choose to give birth rather than choose abortion. 92.

All acts of Raleigh, its officers, agents, servants, employees, or persons acting at

their behest or direction, were done and are continuing to be done under the color and pretense of state law. 93.

Hand of Hope, on behalf of the unborn children, is therefore entitled to declaratory

relief pursuant to 28 U.S.C. § 2201 declaring Raleigh’s land use regulations as applied to Hand of Hope and denial of the Application to be unconstitutional and to preliminary and permanent injunctive relief enjoining Defendant from denying Hand of Hope’s intended use of the Property. 94.

Hand of Hope, on behalf of the unborn children, is further entitled to an award of

their costs in this action, including attorneys’ fees, pursuant to 42 U.S.C. § 1988. 95.

As a result of Raleigh’s unconstitutional denial of the Application, the unborn

children have suffered actual damages in an amount to be proven at trial.

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FIFTH CAUSE OF ACTION 42 U.S.C. § 1983: Violation of Hand of Hope’s First Amendment Right to Free Exercise of Religion 96.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 97.

Hand of Hope’s ministry is a religious activity of a religious organization carried

out by an active group of concerned Christians committed to providing women who may be facing unplanned pregnancies, miscarriages, and abortions with free services and education and a message of hope and life affirming support. 98.

On its face, Raleigh’s Ordinance is a content-based restriction on which expressive

activities are allowed at the Property and subject to strict scrutiny under the Frist Amendment. 99.

By application of its land use regulations, Raleigh has infringed Hand of Hope’s

First Amendment hybrid rights of speech and free exercise. 100.

The City cannot show that its land use regulations and their application to Hand of

Hope’s activities are supported by a compelling interest that cannot be served by less restrictive means. 101.

Raleigh’s application of its land use regulations to prohibit Hand of Hope’s

religious and speech activities therefore violates the Free Exercise Clause of the First Amendment to the United States Constitution as incorporated and applied to the states through the Fourteenth Amendment. 102.

All acts of Raleigh, its officers, agents, servants, employees, or persons acting at

their behest or direction, were done and are continuing to be done under the color and pretense of state law.

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103.

Hand of Hope is therefore entitled to declaratory relief pursuant to 28 U.S.C. § 2201

declaring Raleigh’s land use regulation denial of the Application to be unconstitutional and to preliminary and permanent injunctive relief enjoining Defendant from prohibit. 104.

Hand of Hope is further entitled to an award of their costs in this action, including

attorneys’ fees, pursuant to 42 U.S.C. § 1988. 105.

As a result of Raleigh’s unconstitutional denial of the Application, Hand of Hope

has suffered actual damages in an amount to be proven at trial. SIXTH CAUSE OF ACTION Violation of RLUIPA, 42 U.S.C. 2000cc(a)(1) Substantial Burden Provision 106.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 107.

Section 2000cc (a)(1) of RLUIPA provides (italics added):

(1) General rule. No government shall impose or implement a land use regulation that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution(A)

is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest. 108.

The substantial burden on the religious exercise of Hand of Hope affects, or

removal of that substantial burden would affect, commerce among the several states. 109.

RLUIPA defines the phrase “religious exercise” to include “the use, building, or

conversion of real property for the purpose of religious exercise…,” 42 U.S.C. § 2000cc-5(7)(B).

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110.

Raleigh has imposed or implemented its land use regulations in a manner that has

caused and continues to cause Hand of Hope delay, uncertainty, and expense in the exercise of their religiously motivated activities sufficient to constitute a substantial burden in the RLUIPA context. 111.

In light of the not-for-profit religious and office uses currently permitted as of right

at the Property—as well as the City’s Comprehensive Plan, Future Land Use Map, Plan Commission approval and recommendation, City Compatibility Study, and Office-Mixed Use zoning of the properties to the North, South, and East of the Property—Hand of Hope had a reasonable expectation that it could engage in its ministry and expressive conduct, communicate its message, and have its not-for-profit offices at the Property. 112.

The City’s prohibition of Hand of Hope’s ministry and expressive conduct at the

Property is not the least restrictive means of achieving any governmental interest, let alone a compelling interest. 113.

The City’s denial of Hand of Hope’s zoning application involved an individualized

assessment of Hand of Hope’s use of the Property. SEVENTH CAUSE OF ACTION Violation of RLUIPA, 42 U.S.C. 2000cc(b)(1) Equal Terms Provision 114.

The allegations contained in all preceding paragraphs are incorporated here by

reference. 115.

Section 2(b)(1) of RLUIPA prohibits Raleigh from treating a religious-institution

use less favorably than a non-religious-institution use: (1) Equal Terms

24 Case 5:16-cv-00746-BR Document 1 Filed 08/17/16 Page 24 of 28


No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. 116.

Hand of Hope is a religious institution.

117.

By treating Hand of Hope on less than equal terms with the non-religious, not-for-

profit civic clubs permitted as of right at the Property the Code violates RLUIPA’s equal terms provision. 118.

Hand of Hope’s not-for-profit use of the Property is no different from civic clubs

from the standpoint of any legitimate, accepted, or relevant zoning criteria. 119.

Upon information and belief, there are other non-religious institutions which have

been granted the rezoning Hand of Hope was denied. 120.

Upon information and belief, the City would not allow Hand of Hope to locate its

not-for-profit offices, religious ministry, and pregnancy education center at the Property even though the same uses are permitted uses as of right for civic clubs, churches, and religious education groups. Relief Requested WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant the following relief against Defendant: A.

Decree and declare the rights and other legal relations of the parties to the subject matter in controversy in order that such declaration shall have the force and effect of final judgment and that the Court retains jurisdiction of this matter for the purpose of enforcing the Court’s Order;

B.

Enter a declaratory judgment that Raleigh’s imposition of its land use regulations and denial of the Application violates Hand of Hope’s expressive rights as guaranteed by the First Amendment of the United States Constitution;

C.

Enter a declaratory judgment that Raleigh’s imposition of its land use regulations and denial of the Application violates the women’s substantive due process rights as guaranteed by the Fourteenth Amendments of the United States Constitution; 25 Case 5:16-cv-00746-BR Document 1 Filed 08/17/16 Page 25 of 28


D.

Enter a declaratory judgment that Raleigh’s imposition of its land use regulations and denial of the Application violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;

E.

Enter a declaratory judgment that Raleigh’s denial of the Application violates the unborn children’s substantive due process rights as guaranteed by the Fourteenth Amendments of the United States Constitution;

F.

Enter a declaratory judgment that Raleigh’s denial of the Application constitutes an impermissible substantial burden under Section 2000cc (a)(1) of RLUIPA on Hand of Hope’s free exercise;

A.

Enter a declaratory judgment that Hand of Hope is entitled under Section 2000cc (b)(1) of RLUIPA to be treated on equal terms with the not-for-profit, religious and educational uses permitted as of right at the Property and is entitled to use the Property as a not-for-profit religious organization for all its intended and stated purposes, including its not-for-profit offices, pregnancy education, religious exercises, and expression;

B.

Enter a declaratory judgment that Raleigh’s imposition of its land use regulations and denial of the Application infringes on Hand of Hope’s hybrid rights to free exercise and free speech under the First Amendment;

C.

Enter a preliminary and permanent injunction enjoining the City of Raleigh from enforcing or threatening to enforce its land use regulations to prohibit Hand of Hope from engaging in its ministry and expressive activity at the Property;

D.

Enter a preliminary and permanent injunction enjoining the City of Raleigh from enforcing or threatening to enforce its land use regulations in any way that would interfere with the rights of women who seek or may seek the free reproductive health services and support offered by Hand of Hope at the Property;

E.

Enter a preliminary and permanent injunction enjoining the City of Raleigh from enforcing or threatening to enforce its land use regulations in any way that would interfere with the unborn child’s mother’s ability to receive free pregnancy information and from seeing images of the child which might cause the mother to choose to give birth rather than choose abortion;

F.

Enter judgment on behalf of the Hand of Hope against the City of Raleigh for all damages to which they are entitled, specifically including, but not limited to: (1) the losses suffered as a result of the delay, uncertainty and expense caused by Raleigh’s denial and application of its land use regulations; and

26 Case 5:16-cv-00746-BR Document 1 Filed 08/17/16 Page 26 of 28


(2) for Hand of Hope’s, the women’s, and the unborn children’s lost enjoyment of their rights; G.

Award attorney fees, expenses and costs to the Plaintiffs pursuant to 42 U.S.C. § 1988(b); 42 U.S.C. 2000cc et seq.; or any other laws which authorize the recovery of fees, expenses, and costs;

H.

Award a jury trial on all issues so triable; and

I.

Grant other just relief.

Respectfully submitted, this 17th day of August, 2016. A HAND OF HOPE PREGNANCY RESOURCE CENTER By: /s/ Craig D. Schauer One of its attorneys

Craig Schauer, Esq. Attorney for Plaintiff BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD LLP 1600 Wells Fargo Capitol Center 150 Fayetteville Street Raleigh, North Carolina 27601 Telephone: 919-573-6206 Fax: 336-232-9186 Email: cschauer@brookspierce.com N.C. Bar. No. 41571 John W. Mauck, Esq. Noel W. Sterett, Esq. Attorneys for Plaintiff MAUCK & BAKER, LLC One North LaSalle Street, Suite 600 Chicago, Illinois 60602 Telephone: 312-726-1243 Fax: 866-619-8661 Email: jmauck@mauckbaker.com Email: nsterett@mauckbaker.com Mauck Ill. Bar No. 1797328 Sterett Ill. Bar No. 6292008 27 Case 5:16-cv-00746-BR Document 1 Filed 08/17/16 Page 27 of 28


Verification Pursuant to 28 USC ยง 1746, I, Tonya Baker Nelson, declare under penalty of perjury that I have personal knowledge of matters contained in paragraphs 1, 3, 8-24, 33-42, 46, 54-55, 64, 70, 97, 111, 1 16 of this Complaint and that the allegations contained therein are true and accurate. Signed this 17"' day of August, 2016. Hand of Hope Pregnancy Resource Center 2th By: Tonya Baker Nelson Its: Founder and CEO

Case 5:16-cv-00746-BR Document 1 Filed 08/17/16 Page 28 of 28


EXHIBIT A

Case 5:16-cv-00746-BR Document 1-1 Filed 08/17/16 Page 1 of 2


Case 5:16-cv-00746-BR Document 1-1 Filed 08/17/16 Page 2 of 2


EXHIBIT B

Case 5:16-cv-00746-BR Document 1-2 Filed 08/17/16 Page 1 of 5


CAREW TEE STATEMENT OF PRINCIPLE 1. Hand of Hope Pregnancy Resource Centers (HOH) is an outreach ministry of Jesus Christ through His church. Therefore, HOH, embodied in its volunteers and staff, is committed to presenting the gospel of our Lord to couples with crisis pregnancies — both in word and in deed. Commensurate with this purpose, those who labor as HOH board members, directors, employees and volunteers are expected to know Christ as their Savior and Lord. 2. Hand of Hope is committed to providing its clients with accurate and complete information about both prenatal development and abortion. 3. HOH is committed to integrity in dealing with clients, earning their trust and providing promised education and services. HOH denounces any form of deception in its corporate advertising or individual conversations with its client. 4. HOH is committed to assisting women to carry to term and encouraging men to choose fatherhood by providing emotional support and practical assistance. Through the provision of God's people and the community at large, men and women may face the future with hope and plan constructively for themselves and their babies. 5. HOH does not discriminate in providing services because of the race, creed, color, national origin or marital status of its clients. 6. HOH does not recommend, provide or refer for abortion or abortifacients. 7. HOH offers assistance free of charge at all times. 8. HOH is committed to creating an awareness within the local community of the needs of pregnant women and expectant fathers and of the fact that abortion only compounds human need rather than resolving it.

Core Documents

January 2014

Case 5:16-cv-00746-BR Document 1-2 Filed 08/17/16 Page 2 of 5


STATEMENT OF PRINCIPLE (continued) 9. HOH does not recommend, provide or refer women or men for contraceptives. 10.HOH recognizes the validity of adoption as one alternative to abortion, but is not biased toward adoption when compared to the other life-saving alternatives. The center is independent of adoption agencies, relating to them in the same manner as to other helpful referral sources. HOH receives no payments of any kind from these agencies, does not enter into contractual relationships with them and does not share combined office space. Adoption agencies are not established under the auspices of the Center. HOH neither initiates nor facilitates independent adoptions, though we may refer for independent adoptions.

A

Core Documents

Prcsnancy

January 2014

Case 5:16-cv-00746-BR Document 1-2 Filed 08/17/16 Page 3 of 5


STATEMENT OF FAITH 1. We believe the Bible to be the inspired, the only infallible, authoritative Word of God. 2. We believe that there is one God, eternally existent in three persons: Father, Son and Holy Spirit. 3. We believe in the deity of our Lord Jesus Christ, in His virgin birth, in His sinless life, in His miracles, in His vicarious and atoning death through His shed blood, in His bodily resurrection, in His ascension to the right hand of the Father and in His personal return in power and glory. 4. We believe that for the salvation of lost and sinful man regeneration by the Holy Spirit is absolutely essential and that this salvation is received through faith in Jesus Christ as Savior and Lord and not as a result of good works. 5. We believe in the present ministry of the Holy Spirit by whose indwelling the Christian is enabled to live a godly life and to perform good works. 6. We believe in the resurrection of both the saved and the lost; they that are saved unto the resurrection of life and they that are lost unto the resurrection of damnation. 7. We believe in the spiritual unity of believers in our Lord Jesus Christ.

tr

Core Documents

c!filepc

Prc8nancy Clinic

January 2014

Case 5:16-cv-00746-BR Document 1-2 Filed 08/17/16 Page 4 of 5


COMMITMENT OF CARE & COMPETENCE Document Issue Date:

6/2009

1. Clients are served without regard to age, race, income, nationality, religious affiliation, disability or other arbitrary circumstances. 2. Clients are treated with kindness, compassion and in a caring manner. 3. Clients always receive honest and open answers. 4. Client pregnancy tests are distributed and administered in accordance with all applicable laws. 5. Client information is held in strict and absolute confidence. Releases and permissions are obtained appropriately. Client information is only disclosed as required by law and when necessary to protect the client or others against imminent harm. 6. Clients receive an accurate education about pregnancy, fetal development, lifestyle issues, and related concerns. 7. We do not offer, recommend or refer for abortions or abortifacients, but are committed to offering accurate education about abortion procedures and risks. 8. All of our advertising and communication are truthful and honest and accurately describe the services we offer. 9. We provide a safe environment by screening all volunteers and staff interacting with clients. 10. We are governed by a board of directors and operate in accordance with our articles of incorporation, by-laws, and stated purpose and mission. 11. We comply with applicable legal and regulatory requirements regarding employment, fundraising, financial management, taxation, and public disclosure, including the filing of all applicable government reports in a timely manner. 12. Medical services are provided in accordance with all applicable laws, and in accordance with pertinent medical standards, under the supervision and direction of a licensed physician.* 13. All of our staff, board members, and volunteers receive appropriate training to uphold these standards.

Prc3nancy clinic January 2014 Core Documents Case 5:16-cv-00746-BR Document 1-2 Filed 08/17/16 Page 5 of 5


EXHIBIT C

Case 5:16-cv-00746-BR Document 1-3 Filed 08/17/16 Page 1 of 6


gsuciu(2

)

TONYA BAKER NELSON

Founder Executive Director 607 North Ennis Street Fuquay Varina, NC 27526

optionsofhope.com client

March 7, 2016

handofhope.net 'supporter

City of Raleigh One Exchange Plaza, Suite 400 Raleigh, NC 27601 Re: 1522 Jones Franklin Road rezoning process To Whom It May Concern: Tim Cain will be handling the rezoning application and process for 1522 Jones Franklin Road in Raleigh for A Hand of Hope Pregnancy Resource Center. Please accept this letter as the formal notification of his involvement for your records. Please do not hesitate to contact me at 919-577-8002 should you have further questions. Regards,

Tonya Bic r Nelson Executive Director

Case 5:16-cv-00746-BR Document 1-3 Filed 08/17/16 Page 2 of 6


Rezoning Application

RCP

RALEIGH DE PArl.TME NT OF CITY PL ANNING

Department of City Planning I I Exchange PI7' Suite 3001 Raleigh, NC 276011919-996-2626

REZONING REQUEST Conditional Use

El General Use

OFFICE USE ONLY

• Master Plan

Transaction #

Existing Zoning Classification R-4 w/ SHOD-2 Proposed Zoning Classification Base District

OX

Height

3

Frontage-km*45"

if 14-ir5P-2.

If the property has been previously rezoned, provide the rezoning case number: N/A Provide all previous transaction numbers for Coordinated Team Reviews, Due Diligence Sessions, or Pre-Submittal Conferences: 456963

• Property Address Property PIN

GENERAL INFORMATION Date

1522 Jones Franklin Road

Deed Reference (book/page) 16242 / 1441

0783-01-4528

Nearest Intersection

Property Size (acres) 0.8951

Jones Franklin Road & Woodsdale Road

Property Owner/Address A Hand of Hope Pregnancy Resource Center Tonya B. Nelson 607 N. Ennis Street Fuquay Varina, NC 27526 Project Contact Person/Address Timothy Cain 500 Benson Road #101 Gamer, NC 27529

April 15, 2016

Phone (919) 577-8002 Email

Fax (919) 557-2456

Tonya@HandofHope.net

Phone

(919) 662-4956

Email

Tim@Carolina 1 RE.com

Owner/Agent SignaturCiOradi uae ig-h Email

Fax (919) 662-4956

Tonya@HandofHope.net

A rezoning application will noc4e considered complete until all required submittal c Checklist have been received and approved.

A6 PR: 6:201:6e Rezoning CITy oF put, I-ANN/NG Da): LIP - 1

PAGE 1 OF 9

WWW.RALEIGHNC.GOV REVISION 04.05.16 Case 5:16-cv-00746-BR Document 1-3 Filed 08/17/16 Page 3 of 6


Planning & Development

Development Services Customer Service Center Ono Exchange Plaza 1 Exchange Plaza, Suite 400 Raleigh, North Carolina 27601 Phone 919-996-2495 Fax 919-516-2685

Rezoning Application Addendum OFFICE. USE ONLY

Comprefi-ensive PlariAnalytis The applicant is asked to analyze the impact of the rezoning request. State Statutes require that the

Transaction Number

rezoning either be consistent with the adopted Comprehensive Plan, or that the request be reasonable and in the public interest.

U6 Zoning Case. Number

Rezoning request is consistent with the 2030 Comprehensive Plan for the subject.

..

• ;3". STATEMENT OF CONSISTENCY %•:i'f

,., AF

Provide brief statements regarding whether the rezoning request is consistent with the future land use designation, the urban form map and any applicable policies contained within the 2030 Comprehensive Plan. 1.

Proposed rezoning matches 2030 plan for development of subject parcel. 2. Proposed rezoning matches majority of existing parcels in close proximity of subject. •

Proposed zoning closely correlates with 2030 policies regarding Jones Franklin Road corridor.

4.

... PUB

BEFITS

r$:atc. , .p

• ;,2: ,

.,:

•-.: :d., :17:.,1'44.A%-i*S .

,,,,_,

Provide brief statements regarding the public benefits derived as a result of the rezoning request.

1.

Rezoning will allow for consolidation of multiple uses at different parcels in close proximity. 2. 3. 4.

Rezoning will allow for move from parcel identified as residential use by 2030. Rezoning will provide for greater stability (lease v. owner-occupied) of possessor. Rezoning will relocate office use in closer proximity to retail and other office uses.

Page 3 of 10

www.raleighnc.gov

revision 02.08.16

Case 5:16-cv-00746-BR Document 1-3 Filed 08/17/16 Page 4 of 6


URBAN DESIGN GUIDELINES It the property to be rezoned is shown as a "mixed use center" or located along a Main Street or Transit Emphasis Corridor as shown on the Urban Form Map in the Comprehensive Plan, the applicant must respond to the Urban Design Guidelines contained in the 2030 Comprehensive Plan. 1,

All Mixed-Use developments should generally provide retail (such as eating establishments, food stores, and banks), and other such uses as office and residential within walking distance of each other. Mixed uses should be arranged in a compact and pedestrian friendly form.

2,

Within all Mixed-Use Areas buildings that are adjacent to lower density neighborhoods should transition (height, design, distance and/or landscaping) to the lower heights or be comparable in height and massing.

3,

A mixed use area's road network should connect directly into the neighborhood road network of the surrounding community, providing multiple paths for movement to and through the mixed use area. In this way, trips made from the surrounding residential neighborhood(s) to the mixed use area should bo possible without requiring travel along a major thoroughfare or arterial.

4.

Streets should interconnect within a development and with adjoining development. Cut-de-sacs or dead-end streets are generally discouraged except where topographic conditions and/or exterior lot line configurations offer no practical alternatives for connection or through traffic. Street stubs should be provided with development adjacent to open land to provide for future connections. Streets should be planned with due regard to the designated corridors shown on the Thoroughfare Plan.

6,

New development should be comprised of blocks of public and/or private streets (including sidewalks). Block faces should have a length generally not exceeding 660 feet. Where commercial driveways are usod to create block structure, they should include the same pedestrian amenities as public or private streets.

6,

A primary task of all urban architecture and landscape design is the physical definition of streets and public spaces as places of shared use. Streets should be lined by buildings rather than parking lots and should provide interest especially for pedestrians. Garage entrances and/or loading areas should be located at the side or rear of a property.

7,

Buildings should be located close to the pedestrian-oriented street (within 25 feet of the curb), with off-street parking behind and/or beside the buildings. When a development plan is located along a high volume corridor without on-street parking, one bay of parking separating the building frontage along the corridor Is a preferred option.

8,

If the site Is located at a street intersection, the main building or main part of the building should be placed at the corner. Parking, loading or service should not be located at an intersection.

0,

To ensure that urban open space is well-used, it is essential to locate and design it carefully. The space should be located where it is visible and easily accessible from public areas (building entrances, sidewalks). Take views and sun exposure into account as well.

10,

Now urban spaces should contain direct access from the adjacent streets. They should be open along the adjacent sidewalks and allow for multiple points of entry. They should also be visually permeable from the sidewalk, allowing passersby to see directly into the space.

it

The perimeter of urban open spaces should consist of active uses that provide pedestrian traffic for the space including retail, cafes, and restaurants and higher-density residential.

12.

A properly defined urban open space is visually enclosed by the fronting of buildings to create an outdoor "room" that is comfortable to users.

13.

New public spaces should provide seating opportunities.

14.

Parking lots should not dominate the frontage of pedestrian-oriented streets, interrupt pedestrian routes, or negatively impact surrounding developments.

15.

Parking lots should be located behind or in the interior of a block whenever possible. Parking lots should not occupy more than 1/3 of the frontage of the adjacent building or not more than 64 feet, whichever is less.

16.

Parking structures are clearly an important and necessary element of the overall urban infrastructure but, given their utilitarian elements, can give serious negative visual effects. New structures should merit the same level of materials and finishes as that a principal building would, care in the use of basic design elements cane make a significant improvement.

Page 4 of 10

www.raieighnc.gov

revision 02.08.16

Case 5:16-cv-00746-BR Document 1-3 Filed 08/17/16 Page 5 of 6


ii.

Higher building densities and more Intensive land uses should be within walking distance of transit stops, permitting public transit to become a viable alternative to the automobile.

18,

Convenient, comfortable pedestrian access between the transit stop and the building entrance should be planned as part of the overall pedestrian network.

19.

All development should respect natural resources as an essential component of the human environment. The most sensitive landscape areas, both environmentally and visually, are steep slopes greater than 15 percent, watercourses, and floodplains. Any development In these areas should minimize intervention and maintain the natural condition except under extreme circumstances. Where practical, these features should be conserved as open space amenities and incorporated in the overall site design.

20. It is the intent of these guidelines to build streets that are integral components of community design. Public and private streets, as well as 21.

22,

commercial driveways that serve as primary pedestrian pathways to building entrances, should be designed as the main public spaces of the City and should be scaled for pedestrians. Sidewalks should be 5-8 feet wide in residential areas and located on both sides of the street. Sidewalks in commercial areas and Pedestrian Business Overlays should be a minimum of 14-18 feet wide to accommodate sidewalk uses such as vendors, merchandising and outdoor sealing.

Streets should be designed with street trees planted in a manner appropriate to their function. Commercial streets should have trees which complement the face of the buildings and which shade the sidewalk. Residential streets should provide for an appropriate canopy, which shadows both the street and sidewalk, and serves as a visual buffer between the street and the home. The typical width of the street landscape strip is 6-8 feet. This width ensures healthy street trees, precludes tree roots from breaking the sidewalk, and provides adequate pedestrian buffering. Street trees should be at least 6 1/4" caliper and should be consistent with the City's landscaping, lighting and street sight distance requirements.

23. Buildings should define (he streets spatially, Proper spatial definition should be achieved with buildings or other architectural elements (including certain tree plantings) that make up the street edges aligned In a disciplined manner with an appropriate ratio of height to width.

24.

The primary entrance should be both architecturally and functionally on the front facade of any building facing the primary public street. Such entrances shall be designed to convey their prominence on the fronting facade.

25.

The ground level of the building should offer pedestrian interest along sidewalks. This includes windows entrances, and architectural details. Signage, awnings, and ornamentation are encouraged.

26.

The sidewalks should be the principal place of pedestrian movement and casual social interaction. Designs and uses should be complementary to that function.

Page 5 of 10

www.raleighnc.gov

revision 02.08.16

Case 5:16-cv-00746-BR Document 1-3 Filed 08/17/16 Page 6 of 6


EXHIBIT D

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 1 of 12


Certified Recommendation Raleigh Planning Commission C R#

Case Information: Z-7-16 — Jones Franklin Road Location Request Area of Request Property Owner

Applicant

West side, at its intersection with Woodsdale Road Address: 1522 Jones Franklin Road PIN: 0783014528 Rezone property from Residential-4 with Special Highway Overlay District2 (R-4 w/ SHOD-2) to Office Mixed Use-3 stories-Conditional Use with Special Highway Overlay District-2 (OX-3-CU w/ SHOD-2) 0.9 acre A Hand of Hope Pregnancy Resource Center Tonya B. Nelson 607 N. Ennis Street Fuquay Varina, NC 27526 919-577-8002; tonva@handofhope.net Timothy Cain 500 Benson Road #101 Garner, NC 27529 919-662-4956; tim a rcarolina1re.com

Citizens Advisory West Council (CAC) Benson Kirkman and Jim Paumier, Co-Chairs

benson.kirkmanAattnet; jopaumier(aearthlink.net

PC Recommendation August 8, 2016 Deadline

Comprehensive Plan Consistency The rezoning case is Eg Consistent Ej Inconsistent with the 2030 Comprehensive Plan.

Future Land Use Map Consistency The rezoning case is 4 Consistent ID Inconsistent with the Future Land Use Map.

Comprehensive Plan Guidance FUTURE LAND USE Office/Research & Development URBAN FORM n/a CONSISTENT Policies Policy LU 1.2 - Future Land Use Map and Zoning Consistency

INCONSISTENT Policies

Policy LU 1.3 — Conditional Use District Consistency Policy LU 2.6 - Zoning and Infrastructure Impacts Policy LU 10.3 — Ancillary Retail Uses Policy T 4.8 — Bus Waiting Areas Policy T 4.15 — Enhanced Rider Amenities None identified.

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 2 of 12


Summary of Proposed Conditions 1. Prohibits residential uses. 2. Offers a transit easement and shelter upon redevelopment.

Public Meetings Neighbor Meeting

CAC

Planning Commission

2/12/16

2/23/16 & 4/26/16 (Y— 30, N — 17)

5/10/16

City Council

Public Hearing

Attachments: 1. Staff report

Planning Commission Recommendation Recommendation Findings & Reasons

The following topics should be addressed: • Consistency with the Comprehensive Plan, Future Land Use Map, and other policy guidance • Whether the proposal is reasonable and in the public interest • Compatibility with the surrounding area

Motion and Vote This document is a true and accurate statement of the findings and recommendations of the Planning Commission. Approval of this document incorporates all of the findings of the attached Staff Report.

Planning Director

Staff Coordinator:

Date

Planning Commission Chairperson

Date

a Vivian Ekstrom: (919) 996-2657; vivian.ekstromn

Staff Report Z-7-16 / Jones Franklin Road

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 3 of 12

2


CITY OF RALEIGH DEPARTMENT

Zoning Staff Report — Case Z-7-16

OF

Ci

Conditional Use District

aiming

Case Summary Overview The proposal seeks to rezone a one acre property in southwest Raleigh located near the Interstate 40 and 1-440 interchange. The property is currently occupied by a single family house. Surrounding uses are primarily office, low density residential, and low-scale (3 stories) multifamily residential. The subject property is classified as Office I Research & Development on the Future Land Use Map, as are all adjacent properties. Areas to the northeast across Jones Franklin Road are designated for Moderate Density Residential uses. There is no Urban Form Map designation for the property or the immediate area. The site is currently zoned Residential-4 with Special Highway Overlay District-2 (R-4 w/ SHOD2), as are adjacent properties to the west. Properties to the north, south, and east are zoned Office Mixed Use-3 stories (OX-3). The property to the north has zoning conditions which limit allowed uses, limit building size, specify parking and access locations, apply additional protective yard requirements, and specify other lot layout and building design elements. Similarly, the property to the east has zoning conditions that apply additional streetyard and protective yard requirements and limit building height. The proposed Office Mixed Use-3 stories-Conditional Use (OX-3-CU) zoning would permit a number of commercial uses including office, medical, indoor recreation, personal service, and a limited amount of ancillary retail. In addition, research & development uses would be permitted. The Special Highway Overlay District-2 (SHOD-2) is proposed to remain. The applicant has offered two conditions: 1) a prohibition of residential uses, and 2) an offer of a transit easement and shelter upon redevelopment of the property.

Outstanding Issues Outstanding None. Issues

Suggested n/a Mitigation

Staff Report Z-7-16 / Jones Franklin Road

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 4 of 12

3


Z-7-20 I 6

Existing Zoning Map

dN

9ce

VIC IN/ TY MAP

Request: 0.895 acre from Submittal Date

R-4 w/ SHOD-2 o OX-3-CU w/ SHOD-2

3/10/2016

Staff Report Z-7-161 Jones Franklin Road

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 5 of 12


Rezoning Case Evaluation 1. Compatibility Analysis 1.1 Surrounding Area Land Use/ Zoning Summary

Existing Zoning

Additional Overlay

Future Land Use Current Land Use Urban Form

Subject Propert b Residential-4

Special Highway Overlay District-2

North Office Mixed Use-3 storiesConditional Use

South Office Mixed Use-3 stories

Special Highway Overlay District-2

Special Highway Overlay District-2

Office / Office / Research & Research & Development Development Residential Vacant (detached single family) n/a n/a

Office / Research & Development Medical office

East Office Mixed Use-3 storiesConditional Use Special Highway Overlay District-2 and Special Residential Parking Overlay District Office / Research & Development Office

n/a

n/a

West Residential-4

Special Highway Overlay District-2

Office / Research & Development Residential (detached single family) n/a

(if applicable)

1.2 Current vs. Proposed Zoning Summary Residential Density: Setbacks: Front: Side: Rear: Retail Intensity Permitted: Office Intensity Permitted:

Existing Zonin 3.4 dwelling units/acre (3 total DUs)

Proposed Zonin Not permitted*

20' 10' 30'

5' 0' or 6' 0' or 6'

Not permitted Not permitted

4,000 sf** 26,600 sf

* Per conditions **Only permitted within a multi-tenant building, not in a standalone building and limited to a maximum of 4,000 sf per UDO 6.4.11.C.

Staff Report Z-7-161 Jones Franklin Road

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 6 of 12

5


1.3 Estimated Development Intensities Total Acreage Zoning Max. Gross Building SF (if applicable) Max. # of Residential Units Max. Gross Office SF Max. Gross Retail SF Max. Gross Industrial SF Potential F.A.R

Existing Zonin 0.90 R-4 w/ SHOD-2 n/a

Proposed Zoning* 0.90 OX-3-CU w/ SHOD-2 26,600 sf

3 Not permitted Not permitted Not permitted n/a

Not permitted** 26,600 sf 4,000 sf 35,000 sr** 0.90

*The development intensities for proposed zoning districts were estimated using an impact analysis tool. The estimates presented are only to provide guidance for analysis. ** Per zoning conditions. ***Research & Development is considered an Industrial use; this is the only Industrial use permitted in the OX district. The proposed rezoning is: E Compatible with the property and surrounding area. â?‘ Incompatible. Analysis of Incompatibility: n/a

Staff Report Z-7-16 / Jones Franklin Road

6

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 7 of 12


Future Land Us e M p

Z-7-2016

VICINITY MAP

Reques • 0.895 acre from Submittal Date

R-4 w/ SHOD-2 to OX-3-CU w/ SHOD-2

3/10/ 2016

Staff Report Z-7-16 I Jones Franklin Road

Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 8 of 12


2. Comprehensive Plan Consistency Analysis 2.1 Comprehensive Plan Determination of the conformance of a proposed use or zone with the Comprehensive Plan includes consideration of the following questions: • Is the proposal consistent with the vision, themes, and policies contained in the Comprehensive Plan? • Is the use being considered specifically designated on the Future Land Use Map in the area where its location is proposed? • If the use is not specifically designated on the Future Land Use Map in the area where its location is proposed, is it needed to service such a planned use, or could it be established without adversely altering the recommended land use and character of the area? • Will community facilities and streets be available at City standards to serve the use proposed for the property? The proposal can be considered consistent with the vision, themes, and policies of the Comprehensive Plan and the Future Land Use designation for the property. The Future Land Use Map designates the site as Office / Research & Development, which envisions offices, banks, research and development uses, and ancillary service businesses and retail uses that support the office economy. Residential uses are not considered an appropriate land use. The proposal of OX zoning with a prohibition on residential uses is consistent with this designation. Existing community facilities and streets appear sufficient to accommodate redevelopment possible under the proposed rezoning.

Z2 Future Land Use Future Land Use designation: The rezoning request is: El Consistent with the Future Land Use Map. ❑ Inconsistent Analysis of Inconsistency: n/a

2.3 Urban Form Urban Form designation: El Not applicable (no Urban Form designation) The rezoning request is: ❑ Consistent with the Urban Form Map. ❑ Inconsistent

Staff Report Z-7-161 Jones Franklin Road

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Analysis of Inconsistency: n/a

2.4 Policy Guidance The rezoning request is inconsistent with the following policies: None identified.

2.5 Area Plan Policy Guidance The rezoning request is not within a portion of the City subject to an Area Plan.

3. Public Benefit and Reasonableness Analysis 3.1 Public Benefits of the Proposed Rezoning • • •

Increased opportunity for redevelopment of the site, through a broadening of potential uses. Opportunity to provide limited personal service or retail uses on the site for the benefit of employees. Opportunity for improved transit facilities and rider amenities through the offer of a transit easement and shelter.

3.2 Detriments of the Proposed Rezoning •

None anticipated.

4. Impact Analysis 4.1 Transportation The site is located on the west side of Jones Franklin Road approximately 750 feet north of I40. Jones Franklin Road (SR 5039) is maintained by the NCDOT. This segment of Jones Franklin Road currently has a two-lane, ribbon-paved cross section without curbs or sidewalks. There are no City of Raleigh GIP projects planned for Jones Franklin Road. There are no state STIP projects for Jones Franklin Road in the vicinity of the Z-7-2016 site. Site access will be provided via Woodsdale Road exclusively. In accordance with UDO section 8.3.2, the maximum block perimeter for OX-3 zoning is 3,000 feet. The block perimeter for Z-7-2016 is restricted by the 1-40 and 1-440 rights-of-way, which lie north and south of the subject parcel. The block perimeter formed by Jones Franklin Road, Buck Jones Road, Crossroads Boulevard, et al is greater than 27,000 feet.

Staff Report Z-7-16 Jones Franklin Road

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Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 10 of 12


Approval of case Z-7-2016 would increase average peak hour trip volume by 69 veh/hr; daily trip volume will increase by 903 veh/day. A traffic impact analysis report is not required for Z7-2016. Impact Identified: None.

4.2 Transit This area is currently served by GoTriangle Route 305. Both the City of Raleigh Short Range Transit Plan and the Wake County Transit Plan call for continued service along this street segment. Impact Identified: Using a 5% mode split a 903 vehicle/day increase in trip volume would equal an increase of 45 transit passengers per day. The offer of a transit easement and amenities will help mitigate the impact upon the transit system.

4.3 H drolo Floodplain Drainage Basin Stormwater Management Overlay District

No FEMA Floodplain present. Walnut Subject to Part 10, Chapter 9 of the UDO None

Impact Identified: None.

4.4 Public Utilities Water Waste Water

Maximum Demand (current) 1,800 gpd 1,800 gpd

Maximum Demand (proposed) 6,750 gpd 6,750 gpd

Impact Identified: The proposed rezoning would add approximately 4,950 gpd to the wastewater collection and water distribution systems of the City. There are existing sanitary sewer and water mains adjacent to the properties. The developer may be required to submit a downstream sanitary sewer capacity study and those required improvements identified by the study must be permitted and constructed in conjunction with and prior to the proposed development being constructed. Verification of available capacity for water fire flow is required as part of the building permit process. Any water system improvements required to meet fire flow requirements will also be required.

4.5 Parks and Recreation No existing or proposed greenway trails, connectors or corridors exist on or adjacent to the site. Nearest trail access is 0.5 miles (Lake Johnson).Recreation services are provided by Lake Johnson Center (1.6 miles). Impact Identified: None.

4.6 Urban Forestry The site is less than 2 acres in size. UDO Article 9.1 (Tree Conservation) applies to sites 2 acres or more in size. Impact Identified: None.

Staff Report Z-7-16 / Jones Franklin Road

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Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 11 of 12


4.7 Designated Historic Resources No known historic resources. Impact Identified: None. 4.8 Community Development This site is not located within a redevelopment plan area. Impact Identified: None.

4.9 Impacts Summary • Potential increase in trips for existing transit service.

4.10 Mitigation of Impacts • The offer of a transit easement and shelter upon redevelopment of the site would mitigate the potential impact to the transit system.

5. Conclusions The proposed rezoning is consistent with the Future Land Use Map and the Comprehensive Plan. By prohibiting residential uses, the proposed Office Mixed Use district is consistent with the uses envisioned in the Office / Research & Development designation. The building height limitation of three stories is compatible with surrounding residential and office development. In addition, the offer of a transit easement and shelter will improve transit facilities and rider amenities in the area if the site is redeveloped.

Staff Report Z-7-16 / Jones Franklin Road

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Case 5:16-cv-00746-BR Document 1-4 Filed 08/17/16 Page 12 of 12

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