Posted by: Patricia Salkin | August 31, 2016

Fed. Dist. Court in CA Denies Summary Judgement Motion for Takings and Discrimination Claims by Foundation against City Stemming from Building Violations

Plaintiff, The Daniel and Francine Scinto Foundation, alleged in this case that Defendant City of Orange deprived Plaintiff of and interfered with Plaintiff’s use of its building, primarily by failing to keep required permits and plans for Plaintiff’s building and creating the mistaken belief Plaintiff was in violation of various regulations. In 2012, after a routine fire inspection, “Fire personnel” from the City of Orange Fire Department reported potential Fire Code violations could exist at Plaintiff’s building. After these potential violations were identified, the matter was referred to Rosalva Flores, a Hazardous Material Specialist for the Fire Department, for “follow up.” Flores visited the property and found evidence the tenant, The Breath of Spirit Ministries, “may have committed an unpermitted occupancy change to assembly use, there was an incomplete fire detection system and an individual was living in the attic space of the building.” Thereafter, Flores requested additional information from the Scinto Foundation, but Plaintiff’s representative, Gabrielle Yacoob did not respond to its requests for information, but rather demanded Defendant “prove its position” regarding fire detection requirements.

Daniel Scinto stated Yacoob informed him “a red flag was placed on the building … due to alleged building violations,” and Plaintiff “could not occupy the building until the Foundation met certain conditions.” In December 2015, “the property had an extensive fire,” and the Building Division of the City of Orange Community Development Department “determined it was unsafe to occupy due to the damage.” Since then, no permits had been pulled for re-construction of the property. Plaintiff filed suit alleging defendant: inverse condemnation, nuisance, interference with a contractual relationship, and “discriminatory zoning laws against churches.”

Under California law, “before a Plaintiff may establish a regulatory taking, it must first demonstrate that it has received a final decision from the land use authority regarding application of the challenged land use regulation to its property.” Here, the Court concluded Plaintiff failed to demonstrate an absence of material fact as to whether the governmental determinations, if any, constituted final, definitive decisions such that exhaustion and ripeness requirements were satisfied.

Next, assuming the City was immune from liability, the Court concluded Plaintiff failed to meet its initial burden of showing an absence of material fact as to its claim of international interference with contract. Specifically, although Plaintiff asserted that it was undisputed a valid contract existed between Plaintiff and Amy’s Bridal and Plaintiff and its insurer, Plaintiff did not cite any evidence in support of this claim. Moreover, the court found there was no dispute concerning whether Defendant had knowledge of these contracts.

As to the RLUIPA claims, the Court found that tenant, Breath of Life Spirit Ministries, moved out after months of negotiations with the city over potential Fire Code violations. The court noted, “Even if the Court assumes (without deciding) that renting to a religious institution constitutes religious exercise under RIULPA, the Court cannot conclude Plaintiff has shown “the City’s land use regulation . . . imposed a substantial burden on its religious exercise.”  Further, the court found there was a question whether the claims were ripe, since there was no immediate injury Plaintiff experienced or an alleged government action which caused said injury. Even had this claim been ripe, Plaintiff failed to cite anything in the record indicating it was precluded from carrying out its religious mission or engaging in, conducting, and promoting religious activities in Orange County, California. The “Equal Terms” claim also failed because Plaintiff failed to show the absence of a dispute of material fact as to whether there was “an imposition or implementation of a land-use regulation” on Plaintiff by the government, and whether Plaintiff was treated on less than equal terms with a nonreligious assembly  (e.g. or whether a Section 509(a)(3) private foundation constitutes a “religious assembly or institution” for purposes of RLUIPA),   Accordingly, Plaintiff’s motion for summary judgment was denied.

Daniel and Francine Scinto Foundation v City of Orange, 2016 WL 4150453 (CDCA 8/3/2016)

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