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City To Study Hospital Issue, Co-existence Of Faith, Fun & Law

Long meeting Tuesday night creates two study groups.

 

After some debate, the City Council formed an ad hoc committee Tuesday night to look into how officials could or should respond if Sutter Health moves ahead with plans to close San Leandro Hospital and its emergency room.

In other action at Tuesday night's regular meeting, the council heeded critics and decided to study instead of adopting a zoning change proposed by city staff that would ban recreation and entertainment in San Leandro's industrial zone.

That issue relates directly to San Leandro's long-running court battle with the Faith Fellowship Worship Center.

Possible hospital closure called a 'disaster'

Mayor Stephen Cassidy proposed the ad hoc committee to study the possible hospital closure, calling the shutdown a potential "disaster" for the community.

Councilwoman Joyce Starosciak question what such a committee could hope to accomplish and ended up voting no vote on the motion to form the study group.

Councilwoman Diana Souza, who worried that too much staff time would be devoted to the study, abstained. The measure passed with five votes.

Cassidy, Vice Mayor Michael Gregory and Councilwoman Ursula Reed will serve on the ad hoc group, which forms amid rumors of a possible deal that might keep the hospital or at least its emergency room open.

Whether there is anything to the rumors and what role the city might play remain to be seen, but Cassidy took the position that officials should at least attempt to influence the outcome.

Debate over ban on fun -- and faith? -- in the industrial zone

The crux of the city's battle with the Faith Fellowship -- a congregation that has outgrown its Manor Street location -- is that San Leandro's zoning code had allowed entertainment and recreational uses in its industrial areas while the church was not allowed to relocate there.

That triggered a lawsuit in which the Fellowship argued that it was denied a permit because it was a religious group -- which, it asserts, runs afoul of a federal law designed to help churches win such disputes with local authorities.

The case has gone all the way to the U.S. Supreme Court and back with Faith Fellowship being given the upper hand in a Wall Street Journal analysis of the case in November.

What's all this got to do with the zoning change considered last night?

Plenty, according to Deborah Fox, a specialist with the Meyers Nave law firm which is representing the city in the case.

Fox said that in the next stage in the case a federal judge will examine whether the city's zoning code is unfair to Faith Fellowship.

Fox told the council that the judge will look at the code as it exists at the time of the trial, not as it existed when the case began.

"So changes today will affect the litigation," Cassidy said by way of question, and Fox agreed.

The inference would be that if San Leandro prohibits all recreational and entertainment uses in industrial zones, the city could argue that it treats religious congregations the same as other assembly.

Opposition to this CYA strategy

But the proposal before the council has met with solid opposition. The planning commission has already rejected the idea, putting city staff in the unusual position of urging the council to overrule its own advisory process.

Several speakers opposed the change at Tuesday's meeting.

They ranged from city critic Marga Lacabe, who blogged about the issue, to civic booster Dave Johnson of the Chamber of Commerce.

Lacabe and Johnson used identical arguments -- that recreation and entertainment are compatible with the high-tech the city wants to attract, because the young professionals employed by tech firms work odd hours and like to mix work and play close to their offices.

Former planning commissioner and current city council candidate Chris Crow also spoke at the meeting. He noted that the proposed changes basically vindicate the Fellowship's position that, so far as zoning goes, there is no difference between "listening to a preacher and laughing at a comedian."

Caught between a rock and a hard place, the council decided to refer the issue to its rules committee, consisting of Cassidy, Reed and Councilman Jim Prola.

Fox told the council that the clock was ticking and that the changes had to be in place before the trial began -- no date is set yet -- for the new code to be considered.

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Thomas Clarke February 23, 2012 at 01:05 AM
Tom, the CYA is a valid call out here IMHO. Meyers Nave and Debra Fox have poorly represented the interests of the city. They should be concerned when the city will file for relief and remedies based on the exceptionally poor representation as well as the concurrent liability. There are few better examples of malpractice than the position of Meyers Nave in their advice and support of the city. Fully two million dollars have been spent on other lawyers in fighting to keep an aged facility active in San Leandro when the long term need is just not there. Former Mayor Santows is right about the fact that the council should be putting aside support for the hospital and instead support rapprochement with Sutter Health. As to the truth with which politicians act, we need only consider the past in supporting a course of action for the future. Unless the person is under oath and the threat of perjury, it is only the ingenue who will believe the suitor's promises. Good job Tom, Marga, Chris and Tony for keeping the pressure on what is more and more an opacque and self serving City Council. No doubt the city is not happy with honest journalism.
Marga Lacabe February 23, 2012 at 02:36 AM
Ed, it sounds like you see your job in the Planning Commission as one of rubberstamping. I wonder why you accepted the job if all you plan to do is go along with whatever staff or the council want you to do and hope for the best?
Marga Lacabe February 23, 2012 at 02:47 AM
Tom, as I said on FB, if the complaint was from Mayor Cassidy I'd just dismiss it. Believe it or not, he actually tries to make /me/ change my language, and when I call him to justify his position, he quickly retreats. But the real issue here is of severe importance. It became clear at the meeting that the real need for the zoning changes is to help in the legal battle against the Faith Fellowship. Fox, the city attorney on the case, said as much last night. What follows from this is that the reasons that staff gave to the planning commission, the business & housing committee and the BZA previously were LIES. Now, you'd need to talk to Luke Sims and Kathleen Livermore to see whether they agreed to lie, or they were told to lie by counsel. My money is on the second option. And if so, isn't this outrageous? It'd mean we have a City Attorney that tells staff to lie to government officials, in addition to the public. So Tom, don't let anyone distract you from what the real story here is.
Ed Hernandez February 23, 2012 at 09:11 PM
Marga - Thanks for the question and the opportunity to clarify my interests in San Leandro where I have lived since 2004. I accepted the appointment to the Planning Commission because I wanted to apply my education and experience in real estate development and recent studies at USF in Organizational Development. I look forward to learning and working with the City Council, Advisory Boards, Staff, and the Public in balancing the short and long term opportunities for the city of San Leandro.
Marga Lacabe February 23, 2012 at 11:08 PM
Ed, if you do want to put your education and experience to use, then I'd urge you to not just be a cheerleader to whatever comes your way. Use the same "due diligence" that you would use for your clients (if you have them), for the city. Recognize that neither staff nor the City Council are infallible, and that the interests they may be pursuing may not be the best ones for the cities. Go beyond what they tell you, think over the issues and make sure you ask questions and not be satisfied with platitudes.
Ed Hernandez February 23, 2012 at 11:25 PM
Marga - Will do; thanks for the advice.
anthony February 23, 2012 at 11:58 PM
If you're going with "cover your assets", no problem from here. FoursquareFF utilized a weakness in the zoning code regarding industrial properties, and a favorable interpretation of RLUIPA. Aside from this decision,Centro Familiar/City of Yuma, also exposed weakness in zoning code and another RLUIPA precedent. Many cities to protect their assets, and control what happens within their city, are adjusting their zoning codes accordingly. Failing to adjust city code at this time has implications above and beyond FoursquareFF. What exactly is a "church"? I don't know how this was presented to the BZA, Planning Commision, or other boards, but this has been ongoing since 2007. At first mention of industrial zoning and recreational/entertainment I'm thinking FFF, and I dont have "skin in the game". How effective could a "lie" be with all those people on the inside?
Marga Lacabe February 24, 2012 at 12:31 AM
Anthony, even if you put the 9th circuit interpretation of RLUIPA equal terms clause aside, the 11th Circuit decision on Covenant makes it clear that a zoning code that treats recreational uses differently than religious uses cannot survive strict scrutiny. Now, there is nothing wrong with a CYA strategy /in principle/, but the way the City is going about applying it is very problematic. First, staff outright lied to the Planning Commission, the BZA and the community about the reasons for the chane on the Zoning code. YOu can argue that the everyone should have known better - but that doesn't excuse the staff's lies. And you seem to be well enough versed in the law to know that for an attorney to do that is completely unethical, and even a reason for disbarment. I can only hope that the State Bar and even the DA, will investigate this matter. And btw, even if all these government officials and every person in the community should have figured out what was really behind these changes (and staff made it very difficult to find out what those changes were in the first place), they didn't. As far as I know the only people who ever brought up this issue publicly were Chris, Mike and I (and finally Cassidy at the last meeting). (TBC).
Marga Lacabe February 24, 2012 at 12:38 AM
Furthermore, while CYT may be good legal strategy, here it's a case of being "penny wise, pound foolish". Yes, doing this change *may* (and just *may*) save the City some money. But if the zoning change stops those high-tech companies we covet from moving to San Leandro, we are going to be the losers in the long run. And this actually exposes the weaknesses in San Leandro. Not only do we have an incompetent City Attorney (who got us into this mess in the first place), but we have an incredibly incompetent business development staff, who seem to be doing their best to turn this city into a dessert land.
Leah Hall February 24, 2012 at 01:11 AM
So much stress in San Leandro - we most certainly need /fun/ outlets for all the tension around here.... and I don't mean the clandestine ones that we are known for. ;(
Chris Crow February 24, 2012 at 10:53 PM
The Rules Committee meeting to discuss this matter further has been set for THURSDAY MARCH 1 @ 4PM in the Sister Cities Gallery at City Hall. Best for all those opposed to stay ahead of this issue by attending the committee meeting.
anthony February 25, 2012 at 08:21 PM
What exactly is being opposed? Just got done wading my way through minutes and agendas, and it seems the line in the sand shifted a few times. The recommendations presented to the Planning Commission, before and after the requested "nuanced" adjustments, appear straightforward. Were/are there restrictions on city staff and counsel in regards to the open litigation with Faith Fellowship/Pacific Justice Institute, and how they can present the adjustments? It wouldn't seem fair to be called a liar if the situation dictated a disciplined disclosure.
anthony February 25, 2012 at 09:20 PM
Sorry Marga....my apologies. You lost me with Covenant; from what I pulled on-line it seemed the initial zoning adjustments would have satisfied Covenant and RLUIPA challenges, but I got my paper from Mason/Matlock U. Again, as I posed to Chris, how free are staff and counsel to directly link the changes to ongoing litigation? In regard to the "techies", knowing that an oxygen bar/strip club wouldn't be next door, might be more reason to come to town, not less. The rest...battles and war?
Leah Hall February 25, 2012 at 10:49 PM
Anthony, I greatly appreciate your line of questioning. I also am trying to understand all sides of this complex issue. However, I think it defies common sense to argue that this action was attempting to save our industrial zone from merely illicit recreational uses. Scorch and burn removal of all future entertainment and recreation is more like it, is it not? That's in essence the concern raised by Johnson and Lacabe here and at the council meeting If we don't get smart the only thing we will ever have is Waste Management, for goodness sake. Alas, I can't open the WSJ article referenced above, because I am quite interested in refreshing my memory as to the national significance of this case and the unfolding impact of RLUIPA (which was signed at midnight by Clinton as he left office, without congressional hearing or debate). I did find this advocacy piece online, which points to the potential for abuse and how it is impacting land use decisions throughout the country: RLUIPA ABUSE: A REAL PROBLEM IN THE UNITED STATES "In land-use there are many very good reasons for saying yes. And there are many good reasons for saying no. Houses of worship have to live within our traditional land-use context. Not every vote to deny a house of worship application should be turned into a federal lawsuit. But that is what some of these lawyers seem to be advocating." (continued)
Leah Hall February 25, 2012 at 10:51 PM
"The value of RLUIPA, in the land use context, is certainly questionable in my mind. The concept that an act which creates a substantial burden on a house of worship should be invalidated is one which in the abstract makes a lot of sense. But I'm not aware of many actions that create substantial burdens on houses of worship. Clearly, if you can find one for me, I would have no problem in agreeing that the courts should reverse a special burden. Houses of worship should not be subject to burdens that are greater than those imposed on anyone else. The problem with RLUIPA is that it carries with it substantial monetary penalties, which simply scare that heck out of land-use boards and planning boards. This threat, which can bankrupt many municipalities, causes local zoning boards and planning boards to take actions that they otherwise never would take..." http://www.liebermanblecher.com/aop/religious-land-use-and-institutionalized-persons-act-rluipa/read-a-recent-updated-column/
Leah Hall February 25, 2012 at 10:53 PM
I strongly disagree with the notion that willful ethical and legal misconduct has taken place on the part of our government officials. Triage is more like it, and something vital to our way of life may very well be removed in the process.
Chris Crow February 25, 2012 at 11:13 PM
What is disciplined disclosure? They disclosed it in a public setting that they were trying to bolster the city's defense against Faith Fellowship. Whether that disclosure came out during the public hearings of the BZA, Planning Commission, or Council doesn't matter. All hearings were of public record. They took a dishonest approach with the advisory boards because they knew if it came to the council with their support then they could deny or not disclose any real reasons for the change. If it looked like the "will of the people" then they could continue to call me and others "conspiracy" theorists about the real motivations and it would be a much stronger argument in court about equal treatment of the church. I would encourage you and others (Leah) to not just wade through the minutes, but read them in their entirety. If you did you will see that almost every commissioner expressed frustration at the city staff for not providing clear enough answers to the motivations of the city in this change. The nuanced approach Commissioner Rennie was referring to was like the additional restraints that are placed on strip clubs in the industrial zone. Strip Clubs are permitted (NO CUP NEEDED), but the zoning code has an additional requirement section for them - required to be 1000 feet away from schools, etc. The nuanced approach the staff offered was the exact same approach they took with Faith Fellowship by creating these AU Zones.
Chris Crow February 25, 2012 at 11:20 PM
The lying comes in part because direct questions were asked about the relationship to the church in the Planning Commission and the staff and city attorney denied the connection, only to admit it at a later Public Hearing session about the matter. That came, most likely, because we were able to raise the issue in the San Leandro Times, forcing the Mayor to account for community concerns. You can call it triage, but in San Leandro we all know perception is everything and the perception, supported by the minutes of the meetings, is that the city staff and attorney lied to the community about the connection to Faith Fellowship. Even Commissioner Dlugosh's own comments in the SL Times, saying I was "making something out of nothing" is an admission that he was even under the impression the changes had nothing to do with the church.
Leah Hall February 25, 2012 at 11:21 PM
I'm just sitting at the dock of the bay, wasting time. I appreciate your engagement and willingness to stick your neck out, but I do my own homework, thank you very much. It takes all kinds. :)
Chris Crow February 25, 2012 at 11:21 PM
What's concerning, as I mentioned above, is on what other issues have the city staff and attorney mislead the council and advisory bodies. Well, since this incident has unfolded I have reviewed all the staff reports regarding Faith Fellowship, and it is clear to me that information was used against them to lead the BZA, Planning Commission, and Council into denying their permit. Case in point - Suggesting these new AU zones could have provided the church another opportunity for a building. There are a 196 parcels in these AU zones totaling just a little over 200 acres. The code requires that a church of Faith Fellowship's size to be on a minimum 2 acre parcel...do the math, but that specific piece of math was kept out of the discussion and reports that the BZA, Planning Commission, and Council had to make their decision.
Chris Crow February 25, 2012 at 11:29 PM
Sorry Anthony, haven't even answered your question...The Planning Commission opposes a blanket ban on Entertainment & Recreation in the industrial zones. The city attorney has made it clear that only such a blanket ban would support their defense against Faith Fellowship. Anything that would allow assembly type uses to take place in the industrial zone could be deemed as unfair to religious institutions in court. Leah states that in trying to defend the city against an action it took against the church, which I believe was wrong now and when we took it, we will also be losing an important part of who we are. That's what is being opposed. As the Planner Livermore stated, reasonable minds can disagree on this issue. But no reasonable mind would purposely lie or mislead the decision makers of this government, and no reasonable minds of elected officials would condone through complacency or willingness to mislead or lie to advisory boards which means the only reasonable minds that have decided on this matter is the Planning Commission - and they do not disagree. Their voice is unanimous on this issue.
Chris Crow February 25, 2012 at 11:36 PM
I know you do Leah. And yes it takes all kinds. :) I am very glad you have dived into this issue.
Leah Hall February 25, 2012 at 11:46 PM
Zen move, grasshopper!
Marga Lacabe February 26, 2012 at 12:16 AM
Anthony, the zoning changes are being opposed. I'm not clear how the city will benefit in litigation from changing the Zoning code, but I've discussed why it's a bad idea from a community/business development point of view. I think the small benefit that we'll get in litigation is really not worth the negative impact this zoning change will have on the city. With respect to the restrictions, basically the brown act allows them to discuss in closed session, with legal counsel, any matter that would otherwise "prejudice" litigation. But this particular matter would not. The change of the Zoning code is a public issue, which FF/PJI would therefore know about. You said yourself that the real reasons for the zoning change would be apparent to those on the know, and they definitely were apparent to the PJI lawyers when they learned about it. And the city's lawyer ended up discussing this issue in open session, so there was no reason at all why it couldn't be publicly discussed before. They just didn't want to. But not wanting to is not good enough. The problem is that in order to hide the real reasons for the Zoning change (and really, did they actually think we were stupid enough that we wouldn't find out?), they lied repeatedly to the BZA & Planning commission and the community. Now, I talked to Luke Sims today and he's still going with the "coincidence" excuse...(TBC)
Marga Lacabe February 26, 2012 at 12:24 AM
But I think he realizes it's an indefensible position. The fact that the city planner, who has been there for many years, would "discover" a section of the Zoning code that had to be fixed, just after the 9th Circuit ruled that a code such as our violated RLUIPA, is, to say the least, unbelievable. Add to that the fact that Faith Fellowship brought this issue up to the City's planning department in 2008, that the City Council voted on this particular issue, that it was then the subject of litigation in which the city defended the zoning code as written before two courts, and that the City attorney recommended the change in the zoning code at about the same time than staff "discovered" this section of the code, and either you are the most credulous person in the world, or you have to recognize that they are lying. The real question is whether the city's attorneys /told/ or /suggested/ to staff that they come up with a different reason for the zoning code change (hoping to keep the litigation issue quiet), or whether the idea of doing so came from staff. Were they told to lie, or did they lie on their own? I started with the assumption that they were told (directly or indirectly) to lie by the city's attorneys. But today Jayne Williams, the City Attorney, told me very clearly that they hadn't. Meanwhile Sims continues telling the same fairy tale, so I'm thinking it might have been his idea. Alas, chances are we won't know.
Marga Lacabe February 26, 2012 at 12:38 AM
anthony, as I told the City Council on Monday, the City has to change the Zoning Code. As it stands, not only it violates RLUIPA, but it also violates the US Constitution (that's what Covenant basically said). The changes suggested by staff, originally and later, will bring the zoning code to compliance with RLUIPA and the constitution. But those changes, as I've expressed, will be negative for San Leandro. Instead, what the city can do to resolve this constitutional issue, is to amend the code to allow for Assembly use in the industrial area of town. And indeed, the fact that neither staff nor the city council addressed this issue (which I also brought up), further shows you how the "fixing the code" was never really a consideration. But they can still do it. If not, they should be honest with the community and tell us why not. I don't think this will interfere with their legal strategy. FF's lawyers have bested them before the 9th circuit and the Supreme Court, we can assume these lawyers are not idiots and they can figure out what the purpose of the city's code change is. BTW, neither of your examples constitute "entertainment" or "recreation" under the zoning code, so neither is currently permitted.
anthony February 26, 2012 at 12:41 AM
This is where we part ways. Did the city attorney deny a connection, or cite ongoing litigation as restricting a response? The exchange from the December 15th meeting has me confused, and wondering what sort of restraints staff and counsel were/are working under in presenting the zoning plans, without affecting present litigation.
Chris Crow February 26, 2012 at 02:03 AM
I like your style anthony. This would be a healthy and reasonable place for us to disagree. I was there, it was me asking the questions, it was me who told the staff and attorney that i didn't believe the motivations they were presenting to us. It is me who feels their answers amounted to a lie(s). However, in their defense they would certainly present the case you are making is how it went down. I can not speak for the minutes though because I was immediately removed from the Planning Commission following the 12/15 meeting and I was not allowed to confirm or alter my statements in the final minutes. (where did you find the minutes by the way?...they have not been posted online yet in the planning commission section...I know I have a copy from somewhere else...where did you get yours? just curious...no insinuation) Either way the fact still remains the staff framed the changes as miscellaneous (literally, Planner Livermore stated the Planning Department had extra time on their hands and decided this was a good issue to work on), and whether they were intended to be a lesson learned from Faith Fellowship, a required changed to balance the Faith Fellowship issue, or a necessary change to defend against Faith Fellowship, there was nothing miscellaneous and/or random about these changes.
anthony February 26, 2012 at 02:39 AM
http://weblink.sanleandro.org/publicweblink8/DocView.aspx?id=300755&page=1&searchid=09d2584e-8ef3-4220-b320-92e6d69cbddc&dbid=0
Chris Crow February 26, 2012 at 03:33 AM
it's great to see someone utilizing our fabulous public records database. I encourage you to use it more and more and more. I mean that in all sincerity. it is this community's greatest source of information. :) take a look at this document. this is a supplemental staff report (information it says that was inadvertanly omitted) submitted on the zoning appeals hearing for Faith Fellowship where the church lays out its arguments about why it should be allowed to move into the industrial zone because recreation and entertainment is allowed, and because the church incorporates both entertainment and recreation for its congregation. http://weblink.sanleandro.org/publicweblink8/DocView.aspx?id=208044&searchid=5c9c5462-dc85-4abf-a1cd-56a565c421b9&dbid=0

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