Posted by: Patricia Salkin | February 24, 2011

9th Circuit Court of Appeals Finds City’s Preservation of Industrial Zoned Land for Industrial Uses May Impose a Substantial Burden on Religious Exercise for Church Desiring to Locate There

In 2006, the International Church of the Foursquare Gospel found and signed a purchase and sale agreement for a two-parcel property in San Leandro. The property was located in an Industrial Park zoning district and within the “West San Leandro Focus Area.” The area was set aside in the City’s General Plan to preserve an environment for industrial and technological activity. The property was adjacent to several manufacturing plants and was surrounded by other industrial and light-industrial uses. The Zoning Code did not allow “assembly uses” (churches and other organizational use) to locate in the IP district or other industrial or commercial districts, but did allow them to locate in residential districts, provided a conditional use permit (CUP) was obtained.  

The Church met with City planners and was told about the restrictions, and, following the City staff instructions, the Church filed an application for a zoning change. The City had concerns about the policy implications of allowing an assembly use in an industrial zone, and the Church was told its request would be considered at public hearings by numerous civic advisory bodies, including the City Council. Church representatives participated in the hearings at which two legislative options were presented, including an assembly use overlay district. Under both, the Church would still need to get its land rezoned. 

The Church was anxious that things proceed quickly as it was obliged to complete its purchase by October 31, 2006. (It signed an extension to Dec. 31 by paying $50,000). On Dec. 29, the Church bought the property without the planning changes being finalized, as it believed there was a “strong likelihood” that its application would be approved by the City, based on statements by City officials.  In March 2007, the City Council approved the proposed overlay district amendment and map amendment, and applied it to the 196 sites that had been identified by the planning staff as suitable. The list did not include the Church property because it did not meet two of the eight selection criteria (the site also failed to meet the additional criteria of public health and safety).  As a result, the Church’s later application for rezoning was not approved. Meanwhile, on March 28, 2007, the Church had submitted an application for a CUP for a proposed assembly use, and this too, was denied.  The Church brought a lawsuit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Section 1983, alleging that denials violated the “substantial burden” and “equal terms” provisions under RLUIPA. It offered evidence from its realtor and a former City Manager that no other suitable sites existed in the City (including the 196 sites approved in the amendment) to house the Church’s expanded operations. 

The district court granted summary judgment for the City, concluding that the denials did not violate the “substantial burden” provision of RLUIPA because the zoning law, as a neutral law of general applicability, could impose only an incidental burden, and did not trigger RLUIPA’s strict scrutiny standard. It concluded that the City’s stated interest, of reserving property in the West San Leandro Business District for industrial use, was legitimate, and rejected the Church’s contention that the City’s conduct violated the Equal Terms provision of RLUIPA, as well as its First and Fourteenth Amendment claims. 

On appeal, the Ninth Circuit reversed and remanded, finding there was a triable issue of material fact regarding whether the City imposed a substantial burden on the Church’s religious exercise under RLUIPA, and finding that the City failed, as a matter of law, to prove a compelling interest for its actions. While the zoning scheme itself might be facially neutral and generally applicable, the individualized assessment that the City made, to determine that the Church’s rezoning and CUP request should be denied, was not. The district court erred by dismissing the Church’s realtor’s assertions out of hand: he presented significant evidence that no other suitable properties existed and had examined each of the 196 parcels rezoned for assembly use. This was “certainly more than the scintilla of evidence required to defeat summary judgment.” The district court’s dismissal was also based, at least in part, on its improper scrutiny of the Church’s core religious beliefs, which required that Sunday school and other ministries take place at the same time as the traditional service.  

Second, the preservation of industrial lands for industrial uses did not, by itself, constitute a compelling interest for purposes of RLUIPA. Here, the Church property was on the market because it had been unable to sustain the use preferred by the City as a technology company. “Even if we assume without deciding that the City’s interest [was] compelling, we believe there is a genuine issue of material fact as to whether the City used the least restrictive means to achieve its interest.” 

International Church of the Foursquare Gospel v. City of San Leandro, 2011 WL 505028 (9th Cir. 2/15/2011); amended 4/22/2011 at 2011 WL 151890   

The opinion can be accessed at: http://www.ca9.uscourts.gov/datastore/opinions/2011/02/15/09-15163.pdf 

This abstract appears in the 2/16/2011 IMLA E-News.  For more information about IMLA, visit www.imla.org


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