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.



Jul 092011

But did it need it?

I have been following the controversy over The Bal Theater showing live events for quite some time, but it wasn’t until last night that I finally understood the positions of both sides: the City and The Bal’s owner Dan Dillman.  Neither side – Dillman or the City – has done a particularly good job of laying the issues on the table.  At yesterday’s Board of Zoning Adjustment (BZA) meeting, Community Development Director Luke Sims finally explained the city’s legal rationale for trying to stop Dillman from offering live entertainment.  I have to say, on its face it looks very weak.

The Bal Theater was built in 1946.  At that time it conformed perfectly with the current zoning laws.  It could show movies and live shows and whatever it wanted without the need of a permit.  Many decades later, however, the city changed the Zoning Code to require businesses in that area to acquire a conditional use permit (CUP) in order to show entertainment of any type. The US Constitution, however, protects the prior use of private properties against changes in zoning law.  That means that the entertainment use of The Bal could continue legally, though now it was deemed “non-conforming”.   The right to use a property nonconformingly is transferred to new owners of that property and stays with the property until the non-conforming use is abandoned.  San Leandro defines abandonment of non-conforming use as discontinuing that use for 180 days or more.

The City acknowledges that The Bal has not abandoned its non-conforming right to show movies, and that it can continue to do so without a permit.  It argues, however, that The Bal was primarily a movie theater and that it only occasionally held live events. It further argues that the latter owners of The Bal only used it for movie showing and did not hold any live events there.  Therefore they say, any-nonconforming right to show live events that The Bal had was discontinued/abandoned and doesn’t exist any longer.  The Bal, therefore, must get a conditional use permit to show live events.

There are a couple of problems with the city’s rationale, however.  First of all, while the Zoning codes of other municipalities specify that the non-conforming use of a property can be discontinued totally or partially, our Zoning code does not – merely saying that a non-conforming use that is “substantially” discontinued for 180 days cannot be re-established.  That means that the city has no legal basis for deeming  just part of a non-conforming right (in this case, the right to show live events) abandoned.  Moreover, the city’s own zoning code calls for the need of a conditional use permit for “entertainment uses” of a property, without differentiating between particular entertainment uses.  What this means is that when the Zoning code was passed, The Bal’s “entertainment uses” as a whole became non-conforming, rather than individual particular uses (e.g. showing movies, having magic shows, etc.).  Without a separability clause in the Zoning Code, the city cannot deem any particular entertainment use abandoned.  And that makes sense.  It would be absurd to say that any theater would have to show the exact same type of entertainment at least once every 6 months to keep its right to show that particular type of entertainment.

The city’s claim that The Bal never showed many live events is problematic as well.  What the city seems to be arguing is that even if The Bal has a non-conforming right to show live events, it cannot show more live events than it actually did before the Zoning Code was changed.  Under California precedent “the continued nonconforming use must be similar to the use existing at the time the zoning ordinance became effective” – but I have found no precedents to back the City’s position that a nonconforming use must be identical in frequency to the pre-ordinance use to be considered “similar” under the law.  The City has not set out the basis for this potential argument either.   Indeed, the Assistant City Attorney, Meyers Nave‘s Richard Pio Roda, remained completely silent during last night’s meeting, even when BZA members asked for clarification on legal matters.  I’m not sure whether that’s because he, himself, is ignorant of zoning law or because the City Attorney’s office understands that they are in very shaky legal grounds when asserting that Dillman does not have the right to host live events at the Bal.

Dan Dillman would not have needed to get any type of permits if he continued operating The Bal as a theater.  However, The Bal is not financially viable on its own, so Dan Dillman decided to use the building to host his Computer Repair business as well.    For that, he did need a Conditional Use Permit and applied for one.  The City granted him one, but used this permit to specify that he could not hold live events at the theater.   Basically, the city tried to blackmail Dillman into giving up his non-conforming right to show live events in exchange for being able to run his computer business.  Not only is this highly unethical, but as the city has no legal right to impose such restrictions on Dillman, those restrictions cannot be legally enforced.

Dillman re-opened the Bal and started to show both films and live events.  After a New Year’s show featuring black comedians, the City sent Dillman a warning saying that he could not show live events.  Thus started a process through which Dillman asked the city to remove the restrictions from his Computer Business conditional use permit which ended with the Zoning Board voting to grant him a new CUP to show live entertainment, albeit with frequency and time restrictions.  Now Dillman will have to decide whether he will accept the CUP as granted or just continue with the non-conforming use of the property.  While the CUP as approved last night does limit his existing rights, he risks a legal battle with the City if he continues operating without it.  It’s likely a battle he would eventually win, but legal battles are expensive and time-consuming.  The City has already been showing bullying tactics against Dillman by sending both uniformed and undercover officers to The Bal, and despite our great financial issues the City might decide to be spiteful and fight Dillman.   On the other hand, if Dillman does abide by the CUP, he risks legally abandoning the nonconforming uses of The Bal by turning them into conforming uses, now limited by a permit that could very well be taken away.

I think it’s time for Dillman to consult a good zoning lawyer.

Note: This article was amended with clarifications on California law regarding the continuity of use of a property and on Dillman’s legal options.


Zoning Code, Art. 20. 4-2006
A.  Abandoned Uses Shall Not Be Re-Established.  A nonconforming use that is
substantially discontinued or changed  to a conforming use  for a continuous
period of one hundred eighty  (180) calendar days or more shall not be  re-
established,  and  the  use  of  the  structure  or  site  thereafter  shall  be  in
conformity with the regulations for the district in which it is located, provided
that  this  Section  shall  not  apply  to  nonconforming  dwelling  units.
Abandonment  or  discontinuance  shall  constitute  cessation  of  a  use
regardless of  intent  to  resume  the use. The burden of proof  in establishing
whether  a  nonconforming  use  has  been  discontinued  for  less  than  one
hundred eighty (180) consecutive days shall be upon the operator of the use
or person requesting re-establishment.