Metropolitan News-Enterprise


Tuesday, December 27, 2011


Page 1


Ninth Circuit Panel Upholds County’s Blocking of Church Services in Residential Zone




San Diego County did not violate the constitutional or statutory rights of a Christian congregation by not allowing it to hold services in a residential zone, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The judges affirmed a ruling by Senior U.S. District  Judge Jeffrey T. Miller, granting summary judgment in the action brought against the county by Guatay Christian Fellowship. Miller said the church’s claims, based on the First and Fourteenth Amendments and the Religious Liberty and Institutionalized Persons Act were not ripe for adjudication, because the church did not seek a permit.

The church, which was founded in the 1980s, held services at various locations before moving to the disputed location, a recreation building on the grounds of a trailer park in the unincorporated community of Guatay. Guatay is located in the Mountain Empire area in the southeastern part of the county.

The church moved into the 1940 building in 1986. Evidence presented to the district judge indicated that there had been some references in plans to the building having been used as a “church” at one time, but no evidence that religious services had actually been held there before the fellowship moved in.

The church is located in a “rural residential” zone. Public assemblies, whether religious or secular, are allowed in such areas by permit only, as is true of many other non-residential uses.

Evidence showed that the church or the property owner had discussions with the county about the permit process in 1986, and again in 1988, but had never submitted a completed application. The county took no action, however, until May 2008, when it told the church it needed to obtain a permit if it wanted to continue holding services at the site.

The church ceased holding services at the site after receiving the letter. The pastor said it did so out of fear of the action the county might take otherwise.

The church, which did not apply for a permit, retained counsel and filed suit. It claimed that the county was denying its constitutional rights to freedom of speech and religious and to peaceably assemble, and was violating RLUIPA by substantially burdening religious exercise, placing unreasonable limits on religious assembly, and discriminating against religious uses by imposing unequal terms.

The church moved for a preliminary injunction to allow it to conduct services at the location during the litigation. Miller granted the motion in part, finding that there was a fair chance the church could prove that the county was equitably estopped from enforcing the permit requirement because it had allowed the church to hold services without one for a long time.

The judge agreed with the county, however, that the RLUIPA and constitutional claims were not ripe. He conditioned the preliminary injunction on the church applying for a permit, and also on its rectifying “serious” code violations that the county’s inspectors had identified at the site.

 In November 2008, following a new inspection and the submission of a deposit for permit fees, the church resumed holding services at the site. But after receiving a letter setting for the additional requirements it would have to meet, including environmental tests required by the California Environmental Quality Act—which the church’s expert said would cost more than $200,000 and possibly more than $300,000—the church applied for partial summary judgment.

The county then applied its own motion, seeking summary judgment on all claims. In granting the motion, Miller concluded that equitable estoppel did not apply and that the ripeness concerns he had expressed in ruling on the earlier motion still applied.

The high costs which the church claimed it would have to pay in order to apply for a permit did not establish ripeness, the judge said, because the church had a quick and inexpensive remedy to test those requirements, through the county’s administrative appeal process.

Senior Judge Michael Daly Hawkins, writing Friday for the Ninth Circuit, concurred with the district judge.

The church failed to establish equitable estoppel, Hawkins said, because that doctrine can only be invoked in a land use dispute under “the most extraordinary” circumstances, a burden the church failed to meet.

Having initiated the permit process in 1986, Hawkins said, the church cannot claim that it did not know a permit was required. Nor, he said, did the church show that it relied on the references in the earlier plans to the building having been used as a church in the 1970s, or on the fact that it paid personal property taxes, in believing that the county was knowingly allowing it to operate without a permit, or that such reliance would have been reasonable.

With regard to ripeness, Hawkins cited the Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985). The court held that “[a] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”

A number of courts have applied the “final decision” rule to RLUIPA and constitutional claims, Hawkins noted, based on the essential principle that courts should “avoid entanglement in abstract disputes which would be better defined and more easily resolved with a more complete and concrete factual record.”

The judge rejected the church’s contention that the county’s cease-and-desist letter was the equivalent of a final decision under Williamson.

“The Church has presented no evidence that the County will not or cannot issue a Use Permit once it has received a complete application, and once the Church has complied with what is required of all applicants,” the judge wrote. “Although the Church’s alleged financial straits are lamentable, this is no fault of the County’s and is no reason for us to except the Church from the obligations of all Use Permit applicants.”

Nor can the church argue that seeking a permit would be futile, until it has, at the minimum, submitted its first completed application, Hawkins said.

The case is Guatay Christian Fellowship v. County of San Diego, 09-56541.


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