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.