Metropolitan News-Enterprise


Wednesday, August 22, 2007


Page 1


Ninth Circuit Throws Out City’s Settlement With Congregation

Religious Freedom Claim Did Not Justify Ignoring Neighbors’ Rights Under Zoning Process, Panel Say




A city may not circumvent zoning ordinances by issuing a conditional use permit in order to settle a claim that the property owners’ civil rights were violated, the Ninth U.S. Circuit Court of Appeals yesterday.

A unanimous panel found that residents of the affected neighborhood should have been heard before the City of Los Angeles agreed to waive zoning restrictions as part of the settlement of Congregation Etz Chaim’s suit against the city under the Religious Land Use and Institutionalized Persons Act.

RLUIPA requires that any land use restriction imposed by a city or other recipient of federal funds not discriminate against religious uses nor substantially burden the exercise of religion, absent a showing that the burden is the least restrictive means of serving a compelling government interest.

Ordinances Ignored

But in settling Etz Chaim’s claim, Judge Barry G. Silverman wrote, the city should not have ignored its own ordinances requiring that a specific protocol be followed, especially since there was no judicial finding that RLUIPA had been or would be violated.

“A federal consent decree or settlement agreement cannot be a means for state officials to evade state law,” Silverman wrote.

Etz Chaim, an Orthodox Jewish congregation, purchased property in the Hancock Park neighborhood in Los Angeles. Since the neighborhood was classified as residential by the Los Angeles Municipal Code, the congregation sought a conditional use permit to allow for religious worship and services.

After the request was denied, the congregation brought a federal action alleging that the city’s denial of its application violated state and federal law. The complaint was amended to include an alleged violation of RLUIPA.

Neighbors Opposed

The city and the congregation ultimately settled, with the city denying any violation of federal law. The settlement agreement authorized the use of the property for congregational worship, subject to several restrictions.

The League of Residential Neighborhood Advocates and individual Hancock Park homeowners filed suit alleging that the zoning ordinances did not give the city the authority to enter into a settlement agreement with the congregation.

U.S. District Judge Christina A. Snyder found for the congregation, and the plaintiffs appealed. The panel sided with the neighbors, citing Municipal Code Sec. 12.08(A), which limits the use of buildings in residential zones to one or two family dwellings. Conditional use permits, such as buildings used as a house of permit, require approval.

Silverman summarized how a conditional use permit is acquired:

“The procedure for reviewing CUP applications requires an initial decision by the Zoning Administrator, public notice, and a public hearing. Furthermore, the decision-maker must issue a series of factual findings before granting a CUP. Any aggrieved person may administratively appeal the decision of the Zoning Administrator to the Planning Commission and, if still unsatisfied, to the City Council.”

Zoning laws may not be waived or by municipalities, and any such agreement circumventing a zoning law is invalid and unenforceable, the judge said.

Silverman explained:

“The Congregation sought, and the Settlement Agreement granted, permission to operate a synagogue on the Highland property. In an R1 zone, congregational worship is considered a ‘conditional use’ under Section 12.24, and requires a permit. Before allowing such a use, the City was required to comply with the ordinance’s procedural formalities. Because the City did not satisfy those formalities when it entered into the Settlement Agreement, the Agreement is invalid and unenforceable under state law.”

Silverman went on to say:

“The City might not have to comply with the procedural and substantive limitations set forth in its zoning ordinances if there has been a violation of federal law or if compliance will result in such a violation.”

However, this does not mean that a potential RLUIPA violation authorizes the city to disregard its zoning regulations and allow a settlement agreement, the judge said.

Judges William A. Fletcher and Richard R. Clifton joined in the opinion.

“We are pleased with the Ninth Circuit decision, it’s been a long time in coming,” Leslie M. Werlin of McGuire Woods, who represented the plaintiffs, said. “This has always been a case regarding the importance of zoning laws. The city has no authority to grand use permission in a manner outside the zoning laws, which requires notice, a hearing, and participation by the community.”

Susan S. Azad of Latham & Watkins, who represented Congregation Etz Chaim,  and Tayo A. Popoola, who represented the city, could not be reached for comment. 

The case is The League of Residential Neighborhood Advocates v. City of Los Angeles, 06-56211.


Copyright 2007, Metropolitan News Company