Deborah J. Fox

Aug 212012

District judge Phyllis J. Hamilton is presiding over the case.

Court rules City is not responsible for lost contributions.

San Leandro won a partial victory on August 20th in its ongoing legal battle against the Faith Fellowship Four Square Church.  A federal judge ruled that the City is not liable for the contributions the Church alleged it has lost by not being able to grow its congregation.  Faith Fellowship had been rapidly growing through 2006, when they reached the limit of how many people their existing facilities could accommodate.  They bought a much larger property in the industrial area of town, but the City stopped them from using it as the zoning code did not allow non-commercial assembly use in that area.  Faith Fellowship alleges that this has cause them $19M to $23M in total damages, including $10.4M to $14.3M in contributions it would have received, had it been able to move to its new facilities and further grow its congregation.  The Court  found these specific damages were too speculative to be considered.

The Court also found, however, that the City may be liable for the “hard” damages incurred by the Church as it was forced to sell the property at a loss, as well as for the mortgage, insurance and taxes it paid while it owned the property.  According to the Church, these add up to about $8.4M.

The case is scheduled to go to trial in October, when a jury will decide whether the City imposed a “substantial burden” on the Church by not allowing them use of their newly acquired property.  If so, the jury will also determine the amount of damages that should be paid to the Church.  The Court will then decide whether the City must also pay the Church’s legal fees.  The City has spent close to $1M on its own legal fees, and may be liable to the Church for a similar amount for theirs.

If the jury finds for the City, the Church may still appeal to the 9th Circuit alleging that the City violated the equal treatment clause of the Religious Land Use and Institutionalized Persons Act (RLUIPA) by allowing commercial entertainment in properties zoned industrial, but not religious assemblies.  Recent jurisprudence makes it very likely that the Church would win on these grounds.  The case may then be sent back to trial for a determination of the monetary damages.  This whole procedure is likely to cost the City hundreds of thousands of dollars in additional legal fees.  We better hope we lose at trial this October and the jury doesn’t feel too generous with the Church.

Many interesting things have been happening on this case in the last few months, and I will write about them in a different post.




Mar 122012

The Fox Cinema in Vancouver shows adult movies all day long.

Proposed Amendments to the Zoning Code would ban recreation and entertainment from the industrial area – but would allow “adult businesses” to continue.

Ban likely to be unconstitutional and won’t help with the Faith Fellowship lawsuit.

If Meyers Nave, the law firm that represents the City of San Leandro, gets its way, strip bars and peep shows could flourish in the industrial area of San Leandro.  But theaters, cinemas and recreational venues would not be welcomed.  Shakespeare would be OK, but only if all the actors were nude and got frisky with one another.

At its next meeting, the City Council will again consider banning entertainment and recreational uses from the industrial area of town.  This short-sighted plan was concocted by Meyers Nave  in response to the Faith Fellowship litigation.  Currently, the Zoning code allows entertainment and recreational uses of properties zoned industrial, but not assembly or religious uses.  The 9th Circuit recently ruled that such unequal treatment violates RLUIPA.

The City has potentially two ways in which to amend the code to comply with federal law.  It can either allow religious/assembly uses in the industrial area or it can ban entertainment and recreational uses.  The former approach can contribute to the development of the industrial area, it can bring new people to San Leandro – who will then be likely to shop and dine in this city -, and it can create competition for the purchase of properties, bringing up property values.

The City Council, however, has chosen to focus on the second option: banning entertainment and recreational uses in the industrial area.  I have written before as to why this is a bad idea: the high-tech companies we want to attract realize the importance of combining entertainment and recreation with work – it makes for happier, more productive employees.  Indeed, this is a point that David Johnson, CEO of the San Leandro Chamber of Commerce, has repeatedly made to the City.  Johnson spent a decade working on economic development in Oakland and knows first hand how companies seek to move to cities that don’t make them jump through hoops.  When presented with these facts, the Planning Commission voted twice to reject the entertainment and recreation bans.

The City’s attorneys, however, are adamant about further restricting uses in the industrial area, and they hold a lot of sway with the City Council.  At the last Council meeting, Deborah Fox admitted that the only reason to amend the code was to facilitate the city’s legal strategy on the Faith Fellowship case.  She stated that the district judge will consider the Zoning code as it stands when trial begins, and thus there is a hurry to make these changes soon.

I am unable, however, to figure out what advantage Fox thinks the City will gain by making these changes.  Leaving the issue of adult entertainment aside, the proposed changes in the Zoning code would likely prevent the Church from obtaining a declaratory judgment to the effect that the City’s Zoning code violates RLUIPA.  The district court, however, would still have to decide whether the City violated the equal terms clause of RLUIPA back when it stopped FF from moving into the property they’d bought, and if so, award monetary damages to the Church.  The only “advantage” I can see for the City is in being able to stop Faith Fellowship from acquiring another property in the industrial section and putting a church there.  This may seem very petty, but the City Attorney may have been able to sell this approach to the Council as some sort of “victory”.

In any case, their strategy is very unlikely to work. The Zoning code amendments will bar entertainment and recreational uses from the industrial area, but will continue to allow adult businesses, including adult entertainment businesses, to operate.  The City doesn’t have much of a choice about this, it must allow such businesses to locate somewhere in town and the industrial area seemed the most unobjectionable one when the code was last amended.  But this means that in order to ban adult entertainment in the industrial area, the City must first allow it elsewhere within City limits.  That would open a whole new can of worms that the City, of course, wants to avoid.

But if the Zoning code isn’t changed to disallow adult entertainment in the industrial area, the City is in exactly the same position that it is today: treating churches differently than entertainment venues, and that’s what the 9th circuit has said they cannot do.

As if this wasn’t enough, it seems quite likely that the City doesn’t have the right to ban entertainment from the industrial area in the first place.  Entertainment is considered a form speech and therefore protected by the first amendment.  In Schad v. Mount Ephraim, the US Supreme Court ruled that any ban on entertainment must be “narrowly drawn and must further a sufficiently substantial government interest”.    Schad concerned a city ordinance which prohibited live entertainment in the commercial district, while allowing businesses such as motels, lumber stores, restaurants and office buildings.  In that case, the Court could not find any “substantial government interest” accomplished by the ban.  But a Court looking at an entertainment ban in San Leandro would not even have to look that far – Deborah Fox is on record saying that the only reason for the ban was to gain an advantage in their litigation against Faith Fellowship.  No Court in the land will consider that to be a legitimate, much less a “substantial,”  reason for restricting speech.

We are left with the question, then, of what the City’s attorneys reasons for pushing these changes are.  As I’m not a mind reader, I can only speculate:

Incompetence.  Meyers Nave handled this case badly from the start, neglecting to tell the Council about the risks and potential costs of stopping FF from building their church.   Deborah Fox, in particular, did a horrendous job of arguing the case before the 9th circuit; she seemed surprised by the questions posed by the judges and had no answers.  Her whole handling of the situation since does not inspire confidence in her legal acumen.  So it may simply be that Meyers Nave didn’t look carefully enough at the Zoning code or the law to actually understand the issues at play.

Presumed incompetence.   Meyers Nave tried very hard to have the amendments to the Zoning code be made as quietly as possible.  City staff made up reasons for why these changes were needed, they hid the actual nature of the changes, and the City Council was only informed about them in closed session – very likely in violation of the Brown Act.   They probably believed that they could sneak them by without Faith Fellowship’s attorneys noticing.  I wouldn’t be surprised if Meyers Nave is also hoping that FF’s lawyers won’t re-read the Zoning code and notice that the “adult-oriented businesses” clause will remain in place.

Profit.  The City pays Meyers Nave a very generous amount for general City Attorney services, but they must pay them by the hour for any litigation services.  This means that the more bad advice Meyers Nave gives the city, the more likely the city is to get sued, and the more money Meyers Nave will make in attorney’s fees.  Smart cities avoid this clear conflict of interest by having the City Attorney be an employee, and thus not personally benefit from any litigation.

So what now? We can hope that the City Council will see reason, and will realize that what’s best for Meyers Nave is not what’s best for the City.  We can ask that they do what they were elected to do and include the citizens in any and all decisions that will have such a great impact in the community.  And we can urge them to let get independent legal advise on this matter – from a firm not hired or recommended by Meyers Nave.

Unfortunately, I’m not too hopeful.

Feb 232012

The Daily Review wrote a good summary of the Tuesday night City Council meeting on the plans to ban recreation and entertainment in the industrial area of San Leandro.  At the meeting, Meyers Nave attorney Deborah Fox was forced to admit that the real reason behind the proposed ban was one of legal strategy in the Faith Fellowship case.  Fox is the attorney that represented that unsuccessfully represented the City before the 9th Circuit in this case.  The City had prohibited the Faith Fellowship church from opening a Church in the industrial area of town in violation of federal law.

I will write  more myself about the revelations at the meeting , but what became very, very clear is that the staff (presumably by order of the city’s attorneys) lied to the Planning Commission and the community about the real reasons for the change. I find that completely outrageous.  It also appears that the City Council was fully aware that the zoning change was part of the legal strategy in the Faith Fellowship case, presumably they were briefed during the numerous closed sessions they’ve held on this case.   However, per the Brown Act all discussions about public policy have to take place in open session. It would appear that once again they flouted the law.



Apr 162011

San Leandro City Attorney Jayne WilliamsUnlike many cities, San Leandro does not have a full time City Attorney of its own.  Instead, it contracts with Meyers Nave, one of the most important municipal law firms in the state, for legal advice and representation.  Jayne Williams, one of Meyers Nave’s principals, functions as San Leandro’s City attorney – but other members of the firm also do work for the city.  Unfortunately, the quality of the legal advice that San Leandro is getting from Meyers Nave seems to be quite poor. San Leandro is currently facing a multi-million dollar settlement/judgement in the Faith Fellowship case and is opening itself up to litigation on several fronts.  Meyers Nave benefits from the poor legal advice it provides to the city, charging attorney’s fees to represent it in lawsuits that arise when the city follows its advice.

As mentioned above, the most egregious example of this conflict of interest is the Faith Fellowship case.  Here, a local church that had undergone dramatic growth tried to move to a building large enough to accommodate its congregation.  The only property they could find that would work for them was zoned industrial, and the City Council refused to let them use that property as a church.  Faith Fellowship sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the 9th circuit recently ruled that the city had no compelling interest in denying them that use, and remanded the case for trial on other issues.  A close examination of the case leads me to believe that the city is not likely to prevail and will likely have to pay several million dollars in damages to the church.  The city has already spent $500,000 on legal costs alone, and will be on the hook for Faith Fellowship’s attorneys fees as well.

Meyers Nave’s behavior on this case has been outrageous.  First, it failed to warn the city about its legal liabilities under RLUIPA if it denied the church’s rezoning application.  While it did warn the City Council that they could get sued, it did not explain what the potential damages of the lawsuit might be or what the likelihood of the church succeeding was.  Once the City was sued, rather than advising the City to hire a law firm that specialized in RLUIPA and/or first amendment litigation, Meyers Nave had its own attorneys represent the city.  Meyers Nave made a lot of money on attorneys fees by doing so, but its attorneys were unable to produce coherent or convincing arguments. Attorney Deborah Fox, in particular, made a fool of herself during oral arguments before the 9th circuit – she was clearly unprepared and was unable to answer the judge’s questions with any credibility or coherence.  The rehearing petition filed after the 9th circuit unanimously ruled against the city is so poorly written and so disrespectful of both Faith Fellowship and the 9th Circuit appeals panel, that the city of San Leandro should be ashamed to be associated with it. Still, as inadvisable as filing that rehearing petition was, it does generate additional legal fees for Meyers Nave.

But the firm’s inadequate legal advice goes beyond the Faith Fellowship case.  In 2005, the City of San Leandro entered into an agreement with Redflex for the installation of six red light cameras in the city.  This agreement included a “cost neutrality” clause, which provided that the city and Redflex would share in the revenue from the red light camera tickets.  This cost neutrality provision, however, is explicitly in violation of California law and San Leandrans have been able to have their tickets dismissed on these grounds.  Moreover, there is currently a class action lawsuit on those exact grounds making its way through the courts that, if successful, might force the city in question to provide a refund to everyone who received a red light citation during that contract.   Meyers Nave does not appeared to have warned the city about the illegality of that contract provision and of the potential legal and financial consequences of having it in place – thus, once again, subjecting the city to needless legal risk.

At its next meeting, the City of San Leandro will likely extend its contract with Redflex.  The cost neutrality clause is gone (fortunately), but it remains questionable whether red light camera tickets are legal.  The City Attorney has not, once again, explained to City Council members what the legal issues related to red light cameras are and what the city’s legal risk is in signing this contract.

The same can be said about a new policy that the City is considering to automatically delete all staff and council e-mails.  This policy would violate the California Public Records Act, and would subject the city to litigation.  Has the City Attorney explained these risks (and potential costs) to the City Council?

I suspect that this is the proverbial tip of the iceberg.

My suspicion is that San Leandro would do better if it hired its own full-time city attorney, someone who was able to give it objective, realistic advice and had no incentive to get the city into costly litigation.

April 17th Update

In response to a question in the comments, I’m updating this note with some information about the financial arrangements between Meyers Nave and the City of San Leandro.  In 2008, the city entered into an amended agreement with Meyers Nave, for the firm to provide legal services indefinitely.  Until then, the city legal costs averaged about $900,000 a year, though they were over $1.2 MILLION for the 2007-08 fiscal year.  Legal costs under the amended contract are higher, and I will publish the actual expenditures when I get the numbers.  Under this new contract, Meyers Nave gets paid:

-around $28K a month for basic City Attorney services

-$210/hour for attorney services and $110/hour for paralegal services for non-basic services

-travel expenses

-5% of their fees for administrative costs

The amounts are to increase annually based on the consumer tax index, plus Meyers Nave may ask for additional compensation as it sees fit.

For more recent updates of what Jayne Williams and/or Meyers Nave has been up to in San Leandro, check out the Meyers Nave tag.

Apr 012011

A few weeks ago a federal appeals court ruled that the city of San Leandro might have violated federal law by not allowing the Faith Fellowship Foursquare Church to use a building that it had bought in the industrial zone of San Leandro as a church. Last week, the city asked for a rehearing in the case and the final disposition of the case will probably take at least a few months. If, as I predict, the city ultimately loses, it may have to pay damages and legal bills amounting to several million dollars – which will not be covered by insurance.

So what is this case about? I’ve written many comments about this on San Leandro Patch, but I thought a little primer would be helpful for San Leandro citizens who are trying to figure out what is really going on. Please note that this primer reflects my personal understanding of the case based on public information. I apologize for any errors and invite your comments and corrections.

What is Faith Fellowship?

Faith Fellowship was founded in San Leandro in 1945. It was at one time a prominent church but its membership had dwindled to only 65 people by 1993 when its old pastor left. It recruited Gary Mortara, who quickly grew the congregation so that by 2006 up to 1,700 people attended church services. Faith Fellowship became part of the International Church of the Foursquare Gospel, a Pentecostal evangelist church. Like most Pentecostals, church members believe in faith healing, speaking in tongues and the approaching judgment day. Mortara’s sermons are available online for the curious.

Faith Fellowship’s congregation increased and quickly outgrew its original space and the addition built on an adjacent lot. In 2006, the church started looking for a location in San Leandro that could accommodate all of its membership. The only one they could find available was a 46,000 sq. ft. building on four acres on Catalina Street in west San Leandro. In March 2006, the Church entered into an agreement with the owner to buy the property, paid a $100,000 non-refundable deposit and went to the city with its request to operate a church in that building.

Why couldn’t Faith Fellowship move their church to the Catalina St. property?

The San Leandro Zoning Code divides the city into different zoning areas and determines how property located in each area can be used. The code only allows assembly  use (defined to include “facilities for religious worship”) of properties zoned residential, and then with a conditional use permit. The Catalina St. property, however, was zoned “industrial park.”

How did the City respond to Faith Fellowship’s request to move its church to the Catalina St. property?

City planners met with representatives of the Church on May 3, 2006. The planners explained the zoning situation to the church and offered suggestions about how to proceed. City planners suggested that the Church make a request to change the specific zoning of the Catalina property from “industrial park” (IP) to “industrial light” (IL) and petition to amend the zoning code so as to allow assembly use in IL-zoned areas. The church heeded this suggestion and filed the requests. The Church paid an additional $50,000 to the owner to extend the date by when the sale had to be completed. Throughout this process, the church paid additional amounts to extend the purchase agreement.

In early June 2006, this matter was considered by the City Council’s Business Development Committee, composed of Mayor Shelia Young and two City Council Members. The committee was concerned about what allowing assembly use on all IL-zoned properties would mean for the city and decided to proceed cautiously, involving multiple city bodies, including the Planning Commission and the Board of Zoning Adjustments (BZA) in the decision. Meanwhile, planners at City Hall came up with an alternative plan: the creation of an “Assembly Use Overlay District”. According to this plan, city planners would identify properties not zoned residential but amenable to assembly use, and assembly use would then be allowed in such properties. The city’s Planning Commission and the BZA gave the go ahead to this plan but by the end of 2007, city planners had not yet identified properties on which assembly use would be permitted. The owner of the Catalina St. property was no longer willing to extend the purchase contract, so the church was put in the position of either completing the $5.375 million purchase or forfeiting $250,000 in non-refundable deposits. Church officials believed that they would be able to operate their church on the property, so they purchased the property.

In February 2007, city planners announced a list of eight criteria they would use to determine which properties could become part of the assembly use overlay district. Two hundred properties (later reduced to 196) were identified which met those criteria. In March, the City Council approved the creation of an Assembly Use Overlay District based on those criteria.

One of those criteria was that the property not be located in certain “General Plan Focus Areas“, more specifically, in downtown San Leandro, Bayfair, Marina Blvd/SOMAR or all of west San Leandro. Another criteria was that the property be within 1/4 mile of an arterial street. Clearly, the Catalina St. property did not meet those criteria. The church petitioned to have the church rezoned, but the Planning Commission and later the City Council turned it down based on those criteria and others, including one that the Catalina St. property was within 1/4 mile of businesses with Hazardous Materials Business Plans (HMBP).

What did the Church do then?

After the City Council refused to re-zone the Catalina St. property, the church got creative and requested a conditional use permit for the property for “entertainment uses,” as allowed by the zoning code. Again, the Board of Zoning Adjustments and the City Council denied the church’s request.

The City did offer to work with the Church to identify another property within the AUOD it could use, though ultimately it was unsuccessful.  While continuing to work with the city to find a solution, the church filed a lawsuit asking that the City be mandated to allow the church to operate in the Catalina property.

So what’s the status of the property now?

After crossing escrow on the property in January 2007, the Church made monthly mortgage payments on the property but was unable to move in. Eventually, it could not afford to make those payments anymore and run its current facility at the same time, so in 2010 the church sold the property to the Alameda County Joint Apprenticeship & Training Committee for the Electrical Trade, which will use the building as a training center.

What are the legal issues at play?

The Church alleged that by denying its petition for rezoning, the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law which states that no city can impose a land regulation which imposes a “substantial burden” on a religious assembly, unless the government has a compelling interest to do so and cannot do so by less restrictive means. The act also prohibits government entities from treating religious assemblies “on less than equal terms” with nonreligious assemblies and from excluding religious assemblies from a jurisdiction.

RLUIPA has been found to be constitutional both by the 9th Circuit and many other federate courts.

The church also alleged that the City violated its first amendment rights to freedom of religion and freedom of speech and its 14th amendment rights to due process and equal protection of the laws.

How did the church allege the City violated RLUIPA?

The church alleged that by denying it the use of the Catalina property, the City put a substantial burden on their religious exercise because the church members were unable to meet together as a congregation and perform their religious duties in the buildings they currently occupy. They assert that the Catalina St. property was the only one in the city of San Leandro that they could buy and would fit their needs.

The church asserted that the City violated the “equal protection” clause of RLUIPA because it allows “commercial entertainment” on properties zoned industrial, but not religious assembly use. It contends that any gathering of 50 people or more should be considered an assembly, as per the building code, and that the City discriminates against churches by allowing people to assemble on properties zoned IP for entertainment, educational, shopping and other purposes but not for religious exercise.

It further claimed that the City only imposed the requirement that its facilities not be within 1/4 mile of a site with a HMBP of the Church.

What was the City’s response?

The City claimed that churches are allowed in more than half of the city and that there are a number of properties within this area that are large enough to accommodate the church. While none of those properties were for sale, the City asserted that RLUIPA does not protect churches from the “reality of the marketplace.” The City also contended that the Church does not need to have all its members congregate at once and that it could have different church activities happen in different parts of town. The City maintained that its zoning code is religiously neutral and therefore any burden it imposed on the church was to be considered “accidental” rather than “substantial.” Furthermore, it claimed it had a compelling interest in maintaining the industrial base of San Leandro and that the facility in question was key to that, having once employed 400 people.

With respect to the equal protection claims, the City’s main argument rested on its definition of “assembly.” It contended that for a group of people gathered at one place to be considered an assembly, they must gather for “associational purposes.” Audiences of commercial entertainment venues do not have such purposes. Therefore, they are different enough from religious assemblies that the city can legally allow them, while disallowing religious assemblies.

As to the HMBP issue, the City asserted that there was no evidence that was the reason the City Council voted to deny the Church its request to use the Catalina St. property.

What did the District Court say?

The District Court sided with the City on all grounds and granted summary judgment on its favor. It found that the zoning law was religiously neutral in that it did not target religious assemblies alone, so that the burden it imposed was accidental and not substantial. It also found that as long as there is land in the city that could be used by the church, the fact that the land is not on the market or not immediately suitable to the needs of the church, does not constitute a substantial burden. The court, furthermore, dismissed the church’s requirement that all they be able to conduct all church’s activities on a single site.

The District Court also found that the City’s desire to follow the General Plan is a compelling government interest and that there were no less restrictive means to further that interest.

The district court also agreed with the City’s arguments vis a vis RLUIPA’s equal protection clause (as well as the first & 14th amendment claims) and on the HMBP issue.

The Church appealed the District court decision.

What did the Appellate Court say?

The 9th circuit appellate court unanimously voted to reverse the district court’s decision. This panel found that the church had presented enough evidence to merit a jury trial on the question of whether the City had imposed a substantial burden on the church and that the city’s stated interests in preserving the industrial park as such were not compelling as a matter of law.

The appellate court did not rule on the equal protection or constitutional claims, but said that if the jury were to find there was no substantial burden, the Church could re-appeal to the 9th circuit to have its equal protection claims re-examined.

Why did the Appellate Court say the City might have imposed a substantial burden on the Church?

The Court rejected the argument that laws of general applicability cannot by law impose a substantial burden on the free exercise of religion. Instead, it said that its practice was to look at the particular facts of each case to determine whether the implementation of the law imposed a substantial burden on the claimant (church). The court stated “a substantial burden exists where the governmental authority puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.'”

The Court went on to say that the testimony of the church’s real estate agent and then City Manager John Jermanis that there was no other site that would serve the Church’s need was enough evidence for a jury to rule on that particular question. And that the District Court erred by not accepting the Church’s assertions that its core beliefs required all of its membership to be in one building at one time; it is not up to the Court to determine the truth or falsity of stated religious beliefs.

It also disagreed with the District Court that the mere availability of lots large enough to accommodate the membership of the church meant that no substantial burden had been imposed on the church. Rather, quoting the 2nd circuit, it found that “when the religious institution “has no ready alternatives, or where the alternatives require substantial ‘delay, uncertainty, and expense,’ a complete denial of the [religious institution’s] application might be indicative of a substantial burden.” ”

Finally, it found that the fact that the evidence supported the Church’s position that the location of the church within 1/4 mile of businesses with Hazardous Materials Business Plans was a reason why it was denied rezoning of the Catalina property.

Why did the Appellate Court say the City does not have a compelling interest to not have the Church move into the Catalina property?

The 9th circuit court ruled, quoting a district court case, that “preservation of industrial lands for industrial uses does not by itself constitute a ‘compelling interest’ for purposes of RLUIPA.” It found that revenue generation is also not a compelling interest, as otherwise municipalities could keep churches out completely.

Why did the 9th circuit not rule on the equal protection or constitutional claims?

As a rule, federal courts will not address a constitutional question presented by a case if they can avoid doing so by ruling on other grounds. In this case, the 9th circuit was able to side with the church on the substantial burden question, it could thus avoid ruling on the first and 14th amendment questions.

It’s a bit more difficult to understand why it did not rule on the equal protection/total exclusion clauses of RLUIPA. One possibility is that an equal protection analysis would by necessity touch on the 14th amendment.  Another, and my favored explanation, is that it felt that if it ruled that there had been an equal protection violation, it would have to direct the District Court to grant summary judgment in favor of the church. During oral arguments it became clear that the court had great problems with the City’s argument that there was a significant difference between a group of people getting together to pray (not allowed under the zoning code) and a group of people getting together to watch a wrestling match (allowed). The only differences the city’s attorney could articulate were those that showed the latter activity as less desirable for the area. The Court asked both attorneys what it should do if it found the city had violated the church’s equal protection rights – the church’s attorney asked for summary judgment and the city’s attorney could not articulate why summary judgment in favor of the church should not be granted.

If it was granted, moreover, the Court’s decision would go well beyond San Leandro and affect all cities that have similar zoning codes. My guess is that the Appellate Court did not want to deal with that issue if it didn’t have to, so it ruled on substantial burden grounds to give the city the opportunity to settle with the church and have this issue go away.

What happened next?

The Appellate Court reversed the District Court’s summary judgment in favor of the city, and sent the case back to the district court for a trial on the question of whether the city imposed a substantial burden on the church’s free exercise of religion.

The city has petitioned for a rehearing en banc on this issue. If accepted, the case would be heard by an 11-judge panel of 9th circuit judges.

Will the petition for an en banc hearing be accepted?

In my personal opinion, it’s very unlikely. Very few cases are accepted for an en banc hearing, and I think the city’s arguments are weak and rely on misinterpretations of the Appellate Court’s ruling. However, it is possible that enough 9th circuit judges would be interested in hearing this case that they would vote for an en banc hearing.

On what grounds did the city ask for an en banc hearing?

The 9th circuit will grant en banc hearings only for cases where 1) there is an issue of exceptional importance, 2) there is a need for uniformity in the circuit’s jurisprudence (i.e. other Appellate Courts ruled differently on similar facts) or 3) the Appellate Court’s decision conflicted with decisions from the Supreme Court or other circuits.

The city’s petition for rehearing is an interesting document that I will discuss at length. My general impression is that it was either written by someone who had no knowledge or understanding of law (a first year law school intern, perhaps?) or by someone who was just going through the motions, making half-baked arguments with as much contempt for the Appellate Court and the church as it could muster. This is not a document on which the city should be proud to put its name.

The city claims that the Appellate Court’s ruling that RLUIPA may compel a municipality to rezone a property if there is no alternative property in the city that would fit the needs of a religious institution is in violation of the Establishment Clause of US Constitution and that means this is an issue of exceptional importance. The city, however, doesn’t develop the argument very well nor does it make a case as to why this constitutional question is any more important than the hundreds of other constitutional questions the 9th circuit considers on a weekly basis.

The city further argues that the “substantial burden” test that the Appellate Court created conflicts with those of other circuits and previous 9th circuit opinions.  But while it’s true that on Civil Liberties for Urban Believers the 7th circuit initially adopted a pretty strict definition of  “substantial burden”, it widened it in later cases making it clear that  a burden need not to be insuperable to be substantial.  The city goes on to misapply the holdings of other cases to support its assertion that they create standards of review significantly different from those of the 9th Circuit panel.  For example, it quotes Petra Presbyterian for the proposition that “the ban on churches in the industrial zone cannot constitute a substantial burden on religion,” when the issue in question here is whether the denial of rezoning of the specific property (and not the zoning code itself) imposed a substantial burden. What Petra Presbyterian did hold was that “When there is plenty of land on which religious organizations can build churches (or, as is common nowadays, convert to churches buildings previously intended for some other use) in a community, the fact that they are not permitted to build everywhere does not create a substantial burden.” Whether in fact there is “plenty of land” or the equivalent is a factual question, of course, and one that the 9th Circuit determined that a jury should decide. Similarly, the city quotes San Jose Christian College for the proposition that no substantial burden is imposed by an ordinance that precluded a religious college to operate in one of its facilities, because it could still do so at other facilities within the city and because such ordinance was applied equally to non-religious actors. But the ordinance in that case was one that required all applicants to submit a complete application for rezoning – the college had refused to do so. In other cases, the city confuses dicta for a holding, for example in Midrash Sephardi, the Court did say that “that the congregations may be unable to find suitable alternative space does not create a substantial burden within the meaning of RLUIPA,”but did so on a footnote.

In a section that approximates a rant more than a legal argument, the city also gets into the meat of its argument as to why the Appellate Court’s ruling should not stand. Whether deliberately or not, however, the city grotesquely mischaracterizes the issues. For example, it claims “the question is not whether the market allowed the Church to purchase a particular property, but whether a city can be compelled to amend its zoning ordinance to insure property is available which meets the Church’s criteria” – but the issue is in this case is whether a particular property should be rezoned, not whether the whole Zoning Code must be amended. Similarly, it claims that the Appellate Court’s ruling would force the city to act as a real estate broker and find suitable sites for religious institutions, when this issue will only arise when a religious group has found a site it wants to use and the city refuses to let it do so without a compelling reason. Moreover, it’s up to the religious group to prove that no other suitable sites exist. The city goes on to show its contempt for the church by referring to its core beliefs as a “subjective laundry list of preferences.”

The final argument the city makes is the most interesting one to me. The substantial burden test on RLUIPA applies only to situations in which the government has in place procedures that permit it to make “individualized assessments of the proposed uses for the property involved.” The Appellate Court stated in its decision that there is no dispute that the city’s treatment of the church’s applications constitutes an “individualized assessment” – however, the city actually disputes this in this rehearing petition. It correctly states that the enactment of the Zoning Code is not an “individualized assessment.” It argues that as a corollary, a petition to amend the Zoning Code should not be considered an “individualized assessment” either. However, the issue in this case is, again, the city’s refusal to rezone the Catalina St. property, not to amend the Zoning Code.

April 22 update: the petition for rehearing has been denied.
May update: The City has decided to appeal this case to the Supreme Court.
October update: The Supreme Court denied certiorari on this case.