Faith Fellowship

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
San Leandro Mayor Stephen Cassidy

San Leandro Mayor Stephen Cassidy

It would appear that Mayor Stephen Cassidy wrote to San Leandro Patch editor Tom Abate complaining about an article Abate wrote about the last City Council meeting. In the article, Abate characterized the City Council’s move to change the Zoning Code to help in the legal battle with the Faith Fellow Church as a “CYA* strategy”.

While Abate mentioned the complaint he received, he didn’t say who made it.  Still, Abate didn’t deny that it was Cassidy when I so suggested.  And Cassidy has a tendency of trying to influence the press  On several occasions he’s written to me complaining about specific things I’ve written either on this blog or on Facebook.   He actually e-mailed me to complain that the title of the article I wrote on the same  meeting, “City Council Moves to Ban Entertainment in Most of San Leandro,” was misleading.   It’s difficult to understand how that was so when the agenda for that meeting included a motion to approve an ordinance doing exactly that.

Cassidy is not the only Mayor who has wanted to assert his influence on the press. I’ve heard that the San Leandro Time’s editor had been called to City Hall under the previous administration – Santos objected to the publication of letters critical of the City’s actions.

Still, is it proper for a Mayor to try to influence the press? Is he just doing his job as the self-appointed head of PR for the City, or is he violating the first amendment guarantee to freedom of the press? What do you think?


*CYA = “Cover Your Ass”

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.



Feb 212012

It’s an Acknowledgement that they Violated Faith Fellowship’s Constitutional Rights but… is it good Public Policy?

Unfortunately it seems that most of my analysis below was right.  Read this short update about the Tuesday night City Council meeting.

Do you want to open a wrestling venue in the industrial area of San Leandro?  How about a comedy club, a lecture hall, a dance school offering recitals, a skating ring, something new and fun and family friendly? Right now, all you have to do is get a conditional use permit and you’re free to go.   But if you want to open a church instead, you are out of luck.  The San Leandro’s Zoning Code does not allow “assembly” use in those areas.

This is set to change tonight when the City Council votes on whether  to prohibit recreational and entertainment activities in the industrial areas of town.   While there will be some properties exempted, entertainment venues are also not allowed in residential areas so the end result would be that commercial recreational and entertainment activities would be banned from most of the city of San Leandro.

Lack of Rationale

City Staff has been unable to come up with a believable rationale for this change to the Zoning code.  First, Community Development Director Luke Sims implied it was in response to the triple homicide that took place in a warehouse in San Leandro earlier in 2011.  However, when faced with skepticism (the party in question was held illegally in the first place, and the facilities across the street from its location will still be allowed to hold parties), he quickly retreated into another argument.  The official line now is that this is just to “clean up” the Zoning Code, to make it consistent with the 1992-2002 General Plan.   The General Plan, they say, includes as its goals the protection of the city’s industrial areas by encroachment form incompatible uses and the attraction and retention of high-tech companies.  City staff, however, suggest that they didn’t realize this was the case for 20 years, and that now is the time to fix it.  Yeah right.

Bad Public Policy

As the CEO of the Chamber of Commerce Dave Johnson suggested, that argument is bogus.  We’re in 2012 now, and it’s time to look at the future, not the past.  And for a city like San Leandro, that should mean opening opportunities for growth, not shutting down.  San Leandro, said then Planning Commissioner Chris Crow, wants to attract high-tech companies, so we should look at what SiliconValley cities offer them: and that’s flexible zoning codes that allows recreational facilities near high tech companies.

As anyone with any experience in high tech knows (and unfortunately, that does not include anyone in the City Council or at City Hall), high-tech companies are very different from the factories of yesteryear.  They recognize that a 9-to-5 (or 8-to6) schedule doesn’t work for all employees, and they want to make it easy for their talent to stay at work as long as necessary while staying physically and mentally healthy. Many high-tech companies now offer in-site childcare centers, gyms and even dry-cleaning facilities.  Google has basketball courts; Xerox’s Parc biweekly lectures.   For companies not large enough to accommodate such services at their campuses, having commercial alternatives nearby is likely to be a big plus.

It’s also worth remembering that the high tech industry is moving in fast and unexpected ways – it makes little sense to proscribe uses of properties that don’t even exist at the moment.

Public Opinion is Against the Changes

So far, all San Leandro citizens (as opposed to staff) that have spoken up on the subject have been against the changes to the zoning code.  When staff took the matter to the Board of Zoning Adjustments, most members expressed their disagreement with the changes .  The Planning Commission twice voted to recommend against it.  And yet staff has rushed this to the City Council, and has tried to do it as surreptitiously as possible.

But… will it help in Court?

So what’s going on here? The only logical explanation I can think of is that this is part of the City’s legal strategy in the Faith Fellowship case.   That case had two basic components, in one the Church argued that the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by placing a substantial burden on the Church, which wasn’t able to find another suitable property in San Leandro, for no compelling reason.  Indeed, the reason that the City gave the Court was exactly the same one that staff is now using to ban entertainment use in the area: the need to preserve it for industrial/high-tech purposes.  The 9th Circuit didn’t buy City’s position then, but I wonder if they have found a way to re-argue this part of the case.

Faith Fellowship had even a more compelling argument than the substantial burden one.  They said that the City’s Zoning Code violated both RLUIPA and the US Constitution’s Equal Protection Clause by allowing commercial entertainment venues in the industrial area but not churches.  The 9th circuit seemed to agree with the Church’s position, but it ultimately ruled in favor of the Church in other grounds, and it reserved this issue for further litigation.

I can’t say that I know for sure what the legal strategy behind this Zoning change is.  I do know that staff started working on this in September 2011, not too long after the 11th Circuit issued a decision saying that a claim for injunctive relief is moot once the Zoning Code is changed to become constitutional.  I’ve heard that Pastor Mortara wants the City to find him an acceptable property, rather than just pay money damages; after all, he still needs to accommodate 1,700 parishioners.  This change to the Zoning Code would pretty much guarantee that that wouldn’t happen.   I also know staff is hurrying to deal with this issue and that Marci Hamilton is still advising the City.

Stay tuned…

I do hope, however, that I’m wrong.   Any discussion about changing the Zoning Code must be done in open session, if the City Council was told about this strategy in closed session, they would be violating the Brown Act once again (as they are prone to do).  In any case, we will know how clean the City Council is tonight.  If Council Members are clean, they surely will follow the advise of the Planning Commission, the BZA and the citizens who’ve spoken on this issue.  If they don’t, I think we can fairly conclude that it’s because of some under the table deal.



* When I first asked Sims for a copy of the proposed changes – he claimed they hadn’t been written down, though the Rules Committee had already discussed them!  He later said City Planner Kathleen Livermore  would get back to me, and she did but only to ask me for my address.  She then proceeded to send me a notice of a meeting (later cancelled), with  no information again about what the proposed changes were.