Thursday, June 17, 2004
Page 1
Ninth Circuit Rules:
Judge Properly Permitted Hancock Park Synagogue Construction
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday today upheld an order that led to construction of an 8,150-square-foot synagogue in Hancock Park, despite the city’s contention that the permit for the building was issued in error.
The court ruled 2-1 that the Orthodox Congregation Etz Chaim was entitled to rely on a permit issued for expansion and renovation of a 3,400-square foot home at Third Street and Highland Avenue.
The permit for the now-completed project was issued after the city and congregation of about 50 people settled five years of litigation by allowing the project to go forward with limitations.
The compromise was designed to maintain the character of the tony neighborhood by stipulating that only six cars be parked outside on weekdays—on Saturdays, congregants obey Orthodox rules by walking to services—and stating the structure would not be used for weddings or funerals.
About a week after a building department clerk issued the permit, the city, apparently responding to neighbors’ complaints, issued a stop-work order.
City’s Contention
The city contended the congregation violated the pact by submitting its permit request to someone other than Daniel Green, a planning department staffer specifically named in the settlement agreement.
The congregation, which had long met at a nearby home, persuaded Senior U.S. District Judge Harry Hupp of the Central District of California to lift the order. At the time, Etz Chaim had spent more than $21,000 in permit fees and more than $15,000 for demolition work.
Two of the three judges on the Ninth Circuit panel yesterday agreed with Hupp, finding that the city should not have been able to stop work after issuing a permit.
The judges held that a “commonsense” interpretation of the settlement shows the parties did not intend for the building permit application to be submitted directly to Green, rather than the building department staff.
“The issuance of a valid building permit by the city was essentially a representation that the congregation’s plans were in accordance with the terms of the agreement,” Judge Johnnie Rawlinson wrote.
Rawlinson said Hupp properly ruled that the city, having issued the permit, was equitably estopped from contending the work violated the terms of the agreement.
“The City argues that revocation of the permit is proper because the estoppel doctrine cannot immunize the Congregation from compliance with current law as reflected in the Agreement,” Rawlinson explained. “However, we agree with the district court that the City’s argument is significantly weakened by the fact that the size of the building was clearly delineated in the building plans that were reviewed at length and approved by the City. The issuance of a valid building permit by the City was essentially a representation that the Congregation’s plans were in accordance with the terms of the Agreement.”
Related Suits
Attorney Susan Azad of Latham & Watkins, who argued the case before the panel last summer, said the ruling lifts the on of the last obstacles to the existence of the synagogue in the neighborhood, where a group of homeowners sued the city for allowing the project. Renovations were briefly halted after the city’s stop work order, but after Hupp allowed them to resume the Ninth Circuit declined to issue a stay, Azad said.
They were completed while the matter was on appeal, she noted.
The homeowners’ lawsuit was against the city was dismissed by U.S. District Judge Christina A. Snyder, who took over the case after Hupp died in December, Azad said. Snyder has tentatively said she will not allow the homeowners to refile, and the city has also moved for dismissal, the attorney explained.
“We always felt very strongly that we were right,” Azad said. “We really felt what was going on was the city responding to a small group of homeowners....Now they can really move forward in peace and tranquility.”
Judge Richard C. Tallman concurred in the opinion authored by Rawlinson, but Senior Third Circuit Judge Ruggero Aldisert, sitting by designation, dissented.
Dissenter’s Reasoning
Aldisert said the settlement agreement required “all communications” relating to it to go to Green. wrote that nothing in the record shows a general clerk in the Building and Safety Department “had the competence or authority” to interpret the deal between the city and the congregation.
“[T]he ‘reasonable and commonsense interpretation’ of the Settlement Agreement is that it required the Congregation to contact Mr. Green to make the quasi-judicial determination of whether building and remodeling plans complied with the agreement,” Aldisert declared, adding:
“By circumventing Mr. Green, the Congregation deprived the City of the Congregation’s explicit assurance that it would adhere to the concessions it made in the Settlement Agreement to address the City’s concerns about parking, noise and incompatibility with the surrounding neighborhood.”
The case is Congregation Etz Chaim v. City of Los Angeles, 02-56487.
Copyright 2004, Metropolitan News Company