WINCHESTER — A federal judge has ruled against Afresh Church in its zoning dispute with the city, but left the door open for the case to continue.

U.S. District Court for the Western District of Virginia Judge Michael F. Urbanski ruled on July 1 in Harrisonburg that “Afresh’s motion for summary judgment [against the city of Winchester] is premature and denied without prejudice” because the discovery process for the case had not taken place.

Discovery is a pre-trial procedure during which attorneys for plaintiffs and defendants share information, documentation, depositions and other materials relevant to a case.

According to Urbanski, Winchester could not formally respond to statements made previously by Afresh until it received additional information, including a copy of the church’s lease, through the discovery process.

While Urbanski denied Afresh’s motion for judgment, he did so without prejudice, which allows the case to continue if discovery is completed.

Afresh Lead Pastor Aaron Brewer said this week that his legal team hasn’t made a decision about moving forward, but he doesn’t see another option.

“It’s not good for anybody, but I don’t have a choice,” Brewer said.

Winchester Communications Director Amy Simmons said on Friday the city does not comment on pending litigation.

The dispute between the independent church and city government began a few months after Afresh started meeting at 550 Fairmont Ave. in April 2017, in an events and training center owned by National Fruit Product Co.

The building is located on the National Fruit campus and has Limited Industrial (M-1) zoning. Winchester’s zoning ordinance does not allow nonprofit or community organizations to operate on M-1 properties, so on Oct. 31, 2017, Director of Zoning and Inspections Aaron Grisdale started issuing fines against National Fruit for allowing Afresh to lease its events and training center.

To date, the fines have totaled $2,200. The city has taken National Fruit to Winchester General District Court in an attempt to collect the fines, but that case was put on hold after Afresh filed a federal lawsuit on Dec. 3 accusing the city of violating the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000.

National Fruit CEO David Gum has said in court filings that he allowed other nonprofit and community organizations — Winchester Medical Center Foundation, Lord Fairfax Community College, Shenandoah Apple Blossom Festival and others — to use his company’s building for fundraisers and special events since 2014, but no fines were issued prior to Afresh’s arrival in 2017.

Brewer said this week the city’s zoning ordinance did not specifically prohibit religious organizations from using M-1 properties, and since other community groups had met in the National Fruit building, he believed his church could meet there as well.

Winchester subsequently clarified the list of allowed uses in the M-1 zoning district, but the church’s federal case against the city is based on the language that was in place when Afresh signed its lease with National Fruit.

“At the end of the day, it was a zoning mistake,” Brewer said. “That’s not my fault. I shouldn’t have to suffer, nor should the 500 people who worship at Afresh.”

So far, Urbanski has sided with the church. On July 1, he denied Winchester’s motion to dismiss the lawsuit so Afresh could continue its claim that the zoning ordination violates RLUIPA.

No further hearings will be scheduled in the federal case until Afresh’s lawyers decide if they want to proceed with discovery. A status update in the Winchester General District Court case against National Fruit has been set for Aug. 2.

When asked this week if he has considered ending the dispute by moving Afresh to a new location, Brewer said it is more important to defend the rights of his church. However, he said, a move will have to happen “one day down the road” because his congregation is growing at a fast pace.

“My goal is never to stop growing,” he said, “because we have a message that needs to be shared.”

— Contact Brian Brehm at bbrehm@winchesterstar.com

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