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City Files Petition for Rehearing in Church Lawsuit

The city on Tuesday filed a petition for rehearing with the Ninth Circuit Court of Appeals in a lawsuit filed by Faith Fellowship Foursquare Church.

The City of San Leandro is asking a federal appeals court to reconsider its to allow a trial of a lawsuit filed against the city by one of its biggest churches. 

On Tuesday, the city filed a petition for rehearing before the federal Ninth Circuit Court of Appeals in San Francisco, asking the court to address several questions “of exceptional national importance” that arise from the court’s ruling.

At issue is whether or not the city violated a federal law designed to protect religious institutions from overly burdensome land use regulations.

 filed suit against the city in July 2007 over the city's denial of a rezoning permit to open a new church in a building in an industrial area.

The church, which has more than 2,000 members, had outgrown its current location on Manor Boulevard. The church purchased a new site on Catalina Street, in an area zoned for industrial use and off limits to "assembly uses," including by religious organizations. 

When the city refused to rezone the area to accommodate the church, or to present the church with what church officials considered a viable alternative, the church sued. 

A federal district court judge originally granted the city summary judgment in the case. However, the Ninth Circuit Court of Appeals reversed the decision last month, thereby clearing the way for a trial.

The petition for rehearing asks the appeals court to reconsider its decision, based on issues that the city feels were overlooked in the court’s original ruling.

In essence, the city is asking the court to reexamine whether it imposed a “substantial burden” on Faith Fellowship’s right to exercise religion by declining to rezone the site purchased by the church.

Individuals and religious groups are protected from overly burdensome zoning laws under the Religious Land Use and Institutionalized Persons Act passed by Congress in 2000. Under the law, governments are prohibited from imposing or implementing overly burdensome land use regulations, unless there’s a “compelling governmental interest” for the regulation, and it’s the “least restrictive means” of furthering that interest.

The city argues that the church's new property was located within an area the city designated in its General Plan as a strong industrial district, and therefore, a potentially important source of business development and tax revenue.

The city also argues that, at the time Faith Fellowship sought to relocate, in 2006-2007, the city did rezone “ample land” — 196 parcels — for potential religious assembly use, just not the parcel that the church wanted to occupy. The church claimed, and still does, that the Catalina Street site is the only property in the city suitable for its needs.

In its petition for rehearing, the city also questions whether the court’s interpretation of the federal act violates the First Amendment by suggesting a “special land use preference for religious assembly.” The so-called “Establishment Clause” of the First Amendment states: "Congress shall make no law respecting the establishment of religion,” which has generally been interpreted to mean that no religion should get special treatment by government.

The city argues that the court’s ruling “crosses the boundary into religious favoritism" and "violates the Establishment Clause by granting the church a blanket immunity” from the city’s zoning plan.

In the district court’s original ruling in favor of the city, it found the church’s Realtor had not adequately demonstrated that the Catalina Street property was the only site in the city that met the church’s needs. However, the appeals court found that the lower court had erred in dismissing the Realtor’s judgment.

If that opinion is allowed to stand, the city argues, it “would effectively require that zoning for religious uses be dictated entirely by the stated needs, desires and pocket-book interests of individual churches rather than by legitimate planning criteria equally applicable to similar secular assemblies.”

The city argues that it shouldn’t be held responsible for “conditions created by market forces.”

“Under [the court’s] new test, cities would be required to serve as a virtual real estate broker finding a suitable site for a store front church, a mega-church and every other sized religious facility in between.”

Though he wasn’t familiar with the details of the case, Jesse Choper, an expert in church and state legal issues at the University of California, Berkeley, Boalt School of Law, said the courts had thus far required “an especially strong reason” for a government land use policy to override the federal provision protecting religious exercise.

Choper noted that the Supreme Court had already ruled that the federal law was compatible with the “Establishment Clause” of the First Amendment in the 2005 case Cutter v. Wilkinson, which dealt with prisoners’ right to worship. In that case, the Court found the federal law didn’t violate the First Amendment because the law “alleviates exceptional government-created burdens on private religious exercise.”

The City of San Leandro applied for a rehearing “en banc” in the Faith Fellowship case, which means, if granted, the Chief Ninth Circuit Court Judge and 10 additional judges would hear the case. If the court denies the city's petition for rehearing, the case would likely be sent back to district court for trial. 

Thomas Clarke March 19, 2011 at 01:56 AM
Marga, assuming that you are correct, how does this explain the continued unanimity of the City Council in continuing this case. It is difficult to imagine that there can be any benefit to the city in continuing this.
Marga Lacabe March 19, 2011 at 02:01 AM
Thomas, I think they still don't want to piss off the neighbors :) But more than that, as I said somewhere above, I think the city attorney has failed in her duty to give competent and disinterested advice to the city on this matter. My guess is that the city attorney told them to pursue the rehearing (it's likely to be more money for her firm, after all), and they don't understand the implications. Look, it's not like our city council has a history of making sound decisions. These are the people who have blown through almost all of our reserves, and who are giving raises to city employees in the middle of a recession while raising taxes for the rest of us.
Thomas Clarke March 19, 2011 at 02:36 AM
Given again, that you are right, I sure hope that the congregation at Faith Fellowship stands up and begins to push back hard against the city. This whole debacle is a terrible slam against San Leandro. The city attorney and the whole city council need to be taken to task for this very poor leadership and representation of the diversity of the city. The present mayor is not any better than the one he replaced.
Marga Lacabe March 19, 2011 at 03:12 AM
Thomas, I'm giving Cassidy the benefit of the doubt on this one for now. I've talked to him about this issue (after the council voted to do the rehearing) and I'm confident that he understands the issues and the politics surrounding them and will try to do what he can to minimize what this lawsuit will ultimately cost the city.
Marga Lacabe April 01, 2011 at 04:27 PM
For anyone interested, I've just posted a "primer" on the Faith Fellowship v. SL lawsuit which includes my analysis of the city's petition for rehearing. It's at: http://sanleandrotalk.wordpress.com/2011/04/01/a-primer-on-the-san-leandro-vs-faith-fellowship-church-lawsuit/

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