San Leandro

Apr 212011

Many of us who live in San Leandro are frustrated about the lack of shopping, dining and cultural opportunities in the city. Even during the economic boom early in the century, San Leandro languished. Our downtown is practically a ghost town, devoid of compelling shopping and entertainment venues.  The only reason why anyone goes downtown at all is to go shopping at Safeway or get money at one of the remaining banks.   An empty downtown wouldn’t be a problem if there were other more alive sectors of the city, but that’s not the case either.  San Leandro has a myriad of low-end chain stores, a newly renovated but deserted mall and a wonderful library – but there is nowhere in town where to go for a stroll and do some window or actual shopping, no place that can compare to 4th street in Berkeley, Rockridge, Piedmont Ave., Park St. in Alameda or even downtown Pleasanton or Hayward.

The excuse City Hall has given is that San Leandro doesn’t have the demographics to attract high end stores or restaurants.  And while it’s true that San Leandro’s median household income is of under $60,000 a year, other towns with similar demographics manage to have vibrant business districts. A vibrant business district (combined with more effort putting into improving our schools) would attract a higher demographic to the city, which in turn would attract more businesses.

I think a great part of the problem is that City Hall is not doing its job of trying to attract businesses.  The City spent tons of redevelopment money on the MacArthur Project Area, but has done little to promote it to businesses that might actually attract customers and bring some life into the city.  For example, Vila Cereja (formerly Jake’s Lion), a pretty large restaurant in that area, is up for sale as the owner wants to retire.  This would be a wonderful location for an East Bay branch of a San Francisco restaurant.  The venue was remodeled recently and while it’s a little quirky (for example, it doesn’t have any windows), that could be turned into an advantage.  Its large banquet room could be used as a jazz/world music club – somewhere for grown up entertainment.   It’s right next to the freeway, so it could easily draw customers from nearby cities.  All the City has to do is find someone to invest in the business (and it’s very reasonably priced, Jake just wants to retire) and then promote it.  The idea being that once people outside San Leandro start thinking of San Leandro as a “place to go”, other businesses will think of settling here as well.

As for downtown, the City is already paying the Downtown Farmers Market $15,000 a year to operate.  It’s a wonderful FM and it seems very popular, but the City has no strategy on how to use it to revitalize downtown.  One type of business I think could do well, both in conjunction with the farmers’ market and other downtown businesses, is a nice wine/cheese shop.  It could be located in the space next to Le Soleil, which has been empty for years.  It would have to offer some moderately priced wines for the local crowd and some unusual, attractive selections – to encourage oenophiles from nearby cities to come by.  The City could start by contacting established San Francisco wine shops and pitch the idea that they open a second branch in San Leandro.

In short, what the City’s business developer needs to start doing is developing business: identifying businesses that would do well given our demographics/location/market trends and approaching those businesses to come to town.  They should concentrate on established name-brand businesses, who already have local notoriety, so that San Leandro can gain from their cache, and sell them on our great central East Bay location, starving (if limited) middle-class Berkeley-refugee base, low rents and generally easy parking.  They are not coming to us, so let’s go to them.

Apr 182011

The city of San Leandro will be hiring a new City Manager shortly.  They’ve published a questionnaire online, asking  San Leandro residents vague questions about what they want in a City Manager. No word as to what they will do with the information.  One question that I think is particularly important is that of where the city manager should live.  By law, the City cannot impose a residency requirement on the City Manager – but it can hire someone who lives in San Leandro or shows a strong inclination to move here.  But should we care?

[polldaddy poll=4913366]

Apr 112011

In what may be a sign of the times, the Creekside Community Church seems to be toning down its anti-gay rhetoric.  Most conspicuously, it has redesigned the website of its Celebrate Recovery “Christian based” 12-step program to remove mention of “same sex attraction” as one of the addictions that it covers.  Indeed, Creekside is going as far as having its Coordinator of Children’s Ministries, Peggy McGregory, deny the existence of that part of the program (alas, an archived version of their website from 2009 clearly shows it listed among other “addictions”, the page describing the program is not archived, but this is the standard CR same-sex attraction brochure).  There is no other mention of homosexuality or same-sex attraction on its website, though its statement of faith suggests it continues holding the same fundamentalist beliefs it’s used to justify homophobia.

I can only speculate as to what is behind Creekside’s apparent retreat from condemning homosexuality.  Locally, Creekside anti-gay stance came into play last year when a number of Roosevelt Elementary parents refused to let their children attend theatrical events at the Church.  Creekside’s children theater program was started in order to provide an alternative to the theater program at San Leandro High School, which at the time was ran by a gay teacher.  It had expanded to include elementary school kids and for a number of years, Roosevelt Elementary students would be taken to the church to see these plays during the school day.  Last year, gay parents and their allies complained, given the church’s homophobic positions, and Roosevelt has now ended its association with the Church.    Creekside counts as members several pillars of the San Leandro community, including a City Council member, and it may also be the negative attention the Church was drawing was starting to embarrass them personally.

But the issue may be a broader one.  Homosexuality is becoming more and more accepted in the United States (at least among adults).  Polls show a growing acceptance of gay marriage, with a majority of Americans being in favor of it.  The surge of gay teen suicides last year, meanwhile, has brought attention to the deadly consequences of the homophobic rhetoric of churches like Creekside.

Whatever the reason for it be, I welcome the change.

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.

Mar 232011

This is a copy of a posting I just made to my Food Blog. I’m reposting it here as the 88 market is in San Leandro.  I will probably not do that in the future (crosspost between blogs) and my reviews of San Leandro restaurants and the occasional store will stay in my foodblog.

A few weeks ago, the San Leandro Patch had a little “story” about the 88 market on East 14th St.  I’d been to the store once or twice before, in search of rare Asian ingredients, but it’s not a place I’d normally hit.  However, the Patch article mentioned that the 88 market has become a seafood emporium in the last few years, offering 150 varieties of fish, so when I needed some catfish earlier this week (to make Catfish a la Meuniere which was, btw, amazing), and Safeway was selling it at $9 lb (really? who are they kidding?), I thought we should give 88 market a try.

Fortunately or unfortunately I sent Mike to do the shopping. He was very impressed with the freshness of the fish. Indeed, it was alive and swimming in a tank until Mike ordered it, heard a big thump and a lot of flopping around.  He didn’t watch, and he was happy the kids didn’t go along.  He asked for the catfish to be filleted but again, declined to look at the process.  What can we say? He’s squeamish.

So he was not prepared, after he came home, for me to scream at him from the kitchen to come see what he bought: a bag of fish parts (head, tail, fins, whatever) with two very uneven, not fully descaled, bone-in fillets that would feed one person (if I chose to cook them, which I did not).  Moral of the story? Go to 88 market for very fresh, full fish – but if you want your fish neatly processed, go elsewhere.

I will try this place again, however, when I need some type of rare fish you can’t find at the supermarket – and I have time to learn how to fillet fish myself 🙂

88 Supermarket
14405 E 14th St
San Leandro, CA
(510) 351-8200