Posted by: Patricia Salkin | August 5, 2008

Refusal to Allow Church to Locate Longer Term in Industrial Park Found to Violate RLUIPA

The Grace Church entered into an agreement to lease certain property located in an Industrial Park where churches and other noncommercial uses were allowed subject to a conditional use permit (CUP).  After the Church signed a long term lease, they applied to the City for a CUP. Staff initially stated that it could not support the Church’s application for CUP allowing it to occupy a parcel of land within the Rancho Bernardo Industrial Park, because City staff believed that a church use did not conform with the Rancho Bernardo Community Plan which indicated that the area was to be used for industrial purposes. The staff directed the Church to submit its CUP application to the Rancho Bernardo Community Planning Board (RBPB) for that body to make a recommendation to the City. The RBPB recommended denial of the Church’s CUP application.  Just before the Church’s application then went before a City hearing officer, who subsequently approved a seven year CUP, the City staff met with representatives of the Church and their attorneys, and determined it could support the issuance of the CUP for a term not to exceed five years.  The RBPB appealed to the City Planning Commission the hearing officer’s decision approving a seven year CUP. The Planning Commission approved a five year CUP without explaining why it reduced the term that the hearing officer approved. The Planning Commission also voted to delete a provision inviting the Church to apply for an extension when the five year CUP expired. Several members of the Planning Commission requested that a clause be inserted expressly prohibiting the church from seeking an extension. Staff responded that the church could not be prevented from seeking an extension. 


During the course of the review, statements were made by various Commission members that may be interpreted as being unfriendly towards the Church.  For example, one Commissioner said that the granting of a CUP to the Church would be “sending the wrong message to the business community.” Other discussion focused on concerns over the CUP becoming permanent.  At the conclusion of the hearing, a commissioner told the Church that “five years will go by very, very fast and that I know your congregation and your faith will find you another place because five years will go by very fast.” Shortly after the Planning Commission approved a five year CUP, the RBPB adopted guidelines, applicable only to churches, under which it would be impossible for RBPB to recommend approval of any extension to Grace Church’s CUP.  The staff informed that RBPB that the regulations could not be enforced, and they were withdrawn.


The Church filed a complaint in federal court alleging, among other things, a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), violations of the First and Fourteenth Amendments and violations of the California Constitution.  The Church then filed a motion for partial summary judgment on its RLUIPA claims, which was the subject of the present case. 


The District Court concluded that the City “implement[ed] a  land use regulation in a manner that imposes a substantial burden on the religious exercise” of the Church, and that the City failed to demonstrate that imposition of this burden was in furtherance of a compelling governmental interest that was the least restrictive means to furthering such an interest. The Court noted that the, “preservation of industrial lands for industrial uses does not constitute a ‘compelling interest’ for purposes of RLUIPA”).  Relying on the Ninth Circuit’s decision in Guru Nanank Sikh Society of Yuba City v. County of Sutter, 456 F.3d at 991, the Court determined that there was no reasonable expectation that the City would grant an extension of the CUP beyond the five years, noting that there was outright hostility towards the Church’s application.


A hearing on remedies has been scheduled for today (8/5/2008 ).  This case raises several interesting issues including whether the Church created its own substantial burden when it entered into the third party lease without first applying to the City for a CUP, and whether the City ‘s approval for five years instead of for ten years, constitutes a substantial burden on the Church’s religious exercise. It is expected that the City will appeal.  


Grace Church of North County v. City of San Diego, 2008 WL 2025367 (S.D. Cal. 5/9/2008 ).


The opinion can be accessed at:


For another summary of the case visit the Alliance Defense Fund at:


Special thanks to Adam Kinglsey at Holland & Knight in Chicago, IL ( and Dwight Merriam at Robinson & Cole in Hartford, CT ( for bringing this case to my attention.













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