Metropolitan News-Enterprise


Wednesday, February 16, 2011


Page 1


Ninth Circuit Revives Church’s Challenge to Rezoning Denial

City’s Preference for Revenue-Producing Use Does Not Override Religious Freedom, Panel Says




A city cannot use zoning laws to prevent the building of a church solely because it prefers taxable use of the property, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel revived a suit by the International Church of the Foursquare Gospel against the Bay Area city of San Leandro, which denied the church a variance to build in an “industrial park” district, on a site adjacent to manufacturing plants.

U.S. District Judge Kevin T. Duffy of the Southern District of New York, sitting by designation, said the city had established a triable claim under the Religious Land Use and Institutionalized Persons Act.

RLUIPA, a federal statute enacted in response to a Supreme Court decision striking down the Religious Freedom Restoration Act of 1988, limits the extent to which local entities that receive federal funds may impose land use restrictions on the use of property for religious purposes. If such a restriction imposes a “substantial burden” on religion, it must be non-discriminatory and must be no greater than necessary to vindicate compelling governmental interests.

San Leandro’s asserted interest in deriving tax revenue from the property was not compelling as a matter of law, Duffy said.

The church said it selected the site because it could accommodate the large congregation, with as many as 1,100 people able to attend services while up to 500 participated in other activities, such as Sunday school.

It closed escrow on the property in December 2006, saying it had run out of time to complete the transaction and felt reasonably assured, based on conversations with city officials, that rezoning would be approved.

The Planning Commission, however, rejected the proposal, in part because there were nearby businesses using hazardous materials. The church’s appeal was denied by unanimous vote of the City Council.


The church’s RLUIPA action was rejected in 2008 by U.S. District Judge Phyllis Hamilton of the Northern District of California, who granted the city’s motion for summary judgment. She concluded that because the city’s zoning law was religiously neutral and generally applicable, it did not impose a substantial burden and did not trigger strict scrutiny under RLUIPA.

She further concluded that the city had a legitimate interest in maintaining the property for industrial use, and that the city did not violate RLUIPA, the First Amendment, or the Fourteenth Amendment.

Duffy, however, questioned the district judge’s analysis of what constitutes a substantial burden.

“We have never held that a zoning regulation cannot impose a substantial

burden under RLUIPA simply by the fact that it is a zoning regulation,” the judge said. “...Rather, our practice is to examine the particular burden imposed by the implementation of the relevant zoning code on the claimant’s religious exercise and determine, on the facts of each case, whether that burden is ‘substantial.’”

The church established—for purposes of defeating summary judgment—that the burden was substantial, the judge said, by presenting evidence that there was no other site in the city that was large enough to meet its needs. The city’s suggestion that the congregation meet at multiple, smaller sites did not establish that the burden caused by the denial was insubstantial, Duffy added, in light of evidence that meeting as “one body with Jesus Christ as its head” is a core belief of the church.

Total Exclusion

The judge went on to say that allowing cities to reject houses of worship in order to generate revenue would permit total exclusion of religious institutions, since they are tax exempt. And in this case, Duffy pointed out, the site had been on the market for seven months because no one wanted it for a technology company, as the city preferred.

Even if the city’s interest were compelling, he added, there would be a triable issue as to whether it used the least restrictive means necessary to achieve that interest, since it could use some other property for the desired purpose.

Senior Judge John T. Noonan and Judge Richard Paez concurred in the opinion.

Attorneys on appeal were Kevin T. Snider and Matthew B. McReynolds of the Sacramento-based Pacific Justice Institute for the church, and Jayne W. Williams, Deborah J. Fox, and Philip A. Seymour, of Meyers, Nave, Riback, Silver & Wilson for the city.

The Church State Council and Cavalry Chapel filed an amicus brief supporting the church, while the League of California Cities backed San Leandro.

The case is International Church of the Foursquare Gospel v. City of San Leandro, 09-15163.


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